In all the years I have been blogging, the number of times I have blogged more than once a week is about three I believe. So, why am I making an exception now? Well, my next few weeks are going to be really weird. My daughter comes home from camp on Monday after four weeks. She then has two weeks at home before we all go on a family vacation to California for a week. Once we get back from that, she starts school August 1. Also, I have a bit of give in my schedule at the moment, and so I figured why not. Finally, there is a Supreme Court nominee decision coming up next Monday, and I am figuring that my next blog will be analyzing the nominee’s record when it comes to understanding the rights of persons with disabilities. It may take some time to go through all the relevant opinions. So, with that in mind, our case of the day is Pfendler v. Liberty Dialysis-Hawaii, LLC out of the Ninth Circuit decided July 2, 2018. It is a really short case, but it contains a lot of useful information about dealing with essential functions. As usual, blog entry is divided into categories and they are: facts; court’s reasoning reversing summary judgment for the employer; and takeaways. Since the blog entry is so short, I can’t imagine the reader will not read the whole thing. In any event, the reader is free to focus on any or all of the categories.
Plaintiff suffered a non-work-related shoulder injury and was granted a medical leave in January 2012. Between March and December 2012, he asked to return to work with a lifting restriction that started at 30 pounds and then went up to 50 pounds. The employer rejected those proposals relying on a written job description that lifting 75 to 100 pounds was an essential job function. At the District Court level, the court held that he was not qualified because he could not perform the essential function of the job as listed by the employer, and he appealed.
Court’s Reasoning Reversing District Court’s Summary Judgment in Favor of the Employer
- The employer bears the burden of production for establishing what are the essential functions of the job.
- A job’s essential functions are fundamental duties not the marginal functions of the position.
- Plaintiff testified that he only had to tilt the dialysis recliners and never had to lift one up. Further, evidence in the record existed from another person in the same position that the most weight lifted on a regular basis would be about 40 pounds, a figure within the doctor’s restrictions. So, a question of fact existed as to whether the 75 to 100 pounds was an essential function of the job. Therefore, summary judgment for the employer was not appropriate.
- If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition.
- I have said for years that the best way to think of essential functions of a particular job is in terms of fundamental duties of the position. It is always best if you keep it simple.
- This decision notes that the burden of production is on the employer with respect to what are the essential functions of the job.
- Just because the employer says something is essential in a job description does not mean that the employer automatically wins. What is happening on the ground is critical. So, make sure your job descriptions reflect the reality of what is actually happening. It is a good idea to periodically review job descriptions just to make sure they are accurate. Job descriptions always go out of date over time.
- The court statement that “If the lifting requirement was an essential function, plaintiff may have been entitled to an accommodation that the employer waive the formal lifting condition,” is simply not correct. That is, an employer is under no obligation under the ADA waive an essential function of the job. However, the employer does have to determine whether the essential functions of the job can be performed with or without reasonable accommodations.
- With respect to essential functions of the job, focusing on fundamental duties is the most simple way to go about it. However, for complicated situations, take a look at the EEOC seven factors test and three situation test, which can be found here, to flesh things out. In the vast majority of situations, the fundamental duties approach will solve your problems, but not always.
- Case law exists saying that a function can be essential even if it is not done very often. A fellow blogger, Eric Meyer, whose blog The Employer Handbook appears in my blogroll, discussed such a case here.
- Whether a person has a disability under the ADA does not depend upon how that person incurs that disability.