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Stewart: Disability compliance goes beyond written job requirements

Navigating the American with Disabilities Act (ADA) can be perilous for employers for several reasons. A simplification of the ADA is that if an employee has a disability, the employer may not discriminate against the person on the basis of the disability.

The act’s definition of discrimination includes the failure of the employer to make a reasonable accommodation for the known disability of an employee. If an employee with a disability is able to perform the essential functions of the job – with or without a reasonable accommodation – then an employee may not be treated adversely (i.e. not hired or terminated) due to the inability to perform a task that is not an essential function of the position.

A common but sometimes incorrect approach employers apply to situations involving an employee or job applicant with a disability is to deem any stated job requirement to also be an essential job function.

For example, if a job has five stated job requirements, and an employee or applicant only meets four of the five requirements and cannot meet the fifth because of a disability, that such is a proper basis to treat the person with a disability adversely.

The rationale behind this common approach was undermined in the recent Seventh Circuit case of Shell v Smith. In Shell, a mechanic’s helper for a public transit system suffered from sensory impairment that made him unable to obtain a commercial driver’s license (CDL).

The employee was terminated for his failure to obtain a CDL, which always had been a specified job requirement, despite having held the position for 12 years and never having had a CDL.

His employer argued the CDL was a job requirement and thus, the employee could not perform an essential function of the job. While the trial court agreed with the employer, the appellate court reversed the lower court, finding sufficient evidence existed that the employee could perform essential job functions without a CDL.

Specific factors the court considered, in accordance with federal rules, included “the amount of time spent on the job performing the function” and “the consequence of not requiring the [employee] to perform the function.”

The court noted that a mechanic’s helper may never actually need to drive a vehicle requiring a CDL as part of his job. Even if there was a need to drive on occasion, other employees may perform the task.

The significance of the ADA analysis is that employers must do more than rely on written job descriptions to determine what are the essential functions of a particular position.

If an employee with a disability can perform the great majority of his job duties, then a reasonable accommodation may be for the employer to assign limited tasks to other employees that the employee with a disability may not be able to perform.

A separate analysis exists to determine at what point making an accommodation becomes an undue hardship to the employer.

An employer, however, should conduct a careful analysis of what may be a reasonable accommodation under the ADA beyond a person’s stated job requirements.

• Brad Stewart is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake. Stewart devotes most of his practice to corporate and local government law. He can be reached at bstewart@zrfmlaw.com.

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