Essential Job Functions and the ADA: Insights from the Tenth Circuit Decision

ADA case from the Tenth Circuit upholds employer-defined job duties when safety and security risks are significant. It clarifies accommodation limits and supports consistent qualification standards without lowering business requirements.

By Brad Nakase, Attorney

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Table of Contents

1. Introduction

2. Background

3. Numerous charges

4. Ruling of the Tenth Circuit

5. The bottom line

Introduction

Even the most fundamental definitions of the Americans with Disabilities Act (ADA) are changing as a result of the major adjustments made to the Act earlier this year and the EEOC’s planned modifications to the Act’s rules before the end of the year. Any amendments to the Act will, of course, be interpreted and applied by the courts.

Oklahoma’s supreme federal court, the Tenth Circuit, interprets employment law in a usually conservative manner. Despite addressing the pre-amended ADA, the following ruling suggests that the judiciary will maintain its conservative stance under the new legislation.

The case challenged the court to decide whether ADA-mandated essential job functions are the ones that are rarely needed in the regular course of an employee’s activities. The court came to the conclusion that a function may be considered vital if the possible repercussions of hiring someone who is incapable of carrying out the duties of the position are serious enough.

Background

Barbara Hennagir worked for the Utah DOC (Department of Corrections) as a physician’s associate. The DOC did not require medical & clinical professionals to be certified in peace officer standards and training (POST) at the time of her 1997 hiring. However, to maintain security and safety, it started mandating POST certification in 2002 for all healthcare staff whose work involved interaction with prisoners. Hennagir was asked to earn her POST certification.

Hennagir has rheumatism, osteoarthritis, & lupus. Her health issue prevented her from participating in the physical tasks of the POST training program.

Hennagir was informed in 2003 that she had been offered work as a physician’s assistant at a different facility, where inmate interaction is not necessary, because she couldn’t manage to obtain POST certification. She was informed that she would be fired if she turned down the position, which was one hundred kilometers from her place of residence.

Numerous charges

The prospect of termination, according to Hennagir’s administrative complaint, was harassment because of her disability. She also accused the EEOC of unfair treatment, claiming that the ADA had been broken. Hennagir’s dispute was finally resolved by the DOC in 2004, which stated that all physician assistants at the place she worked needed to be POST-certified. She was therefore forced to choose between being fired and taking alternative employment.

Instead of making the decision, Hennagir used the FMLA to take medical leave. She took almost a year of long-term disability absence after using up all of her FMLA leave, and the DOC kept her on leave during that period. She filed an additional EEOC accusation while on vacation, claiming that the suggested relocation and a subpar performance review were retaliatory for her handicap discrimination allegations.

The EEOC determined that Hennagir had experienced handicap prejudice and that the DOC’s offer to relocate her was not an adequate solution in March 2005, just before she came from medical leave. Hennagir received an alternate offer from the DOC: a medical job at her prison that would pay the same and involve auditing, reviewing, and organizing inmates’ contract care. Since the POST certification wasn’t a necessary job function, she declined the offer and insisted on having it removed for her. Her position with the DOC ended in August.

Hennagir filed a lawsuit alleging retaliation, denial of adequate accommodations, and disability discrimination in breach of the ADA after receiving a right-to-sue notice from the EEOC. She was “not disabled and not qualified for the work at her facility,” according to the district court, which dismissed her complaint even though she would have been under the modified ADA.

Her suggested accommodation, which was to waive the training prerequisite, was deemed unreasonable. Since the DOC initiated the contested employment measures for business-related motives, her retaliation claim was also unsuccessful.

Ruling of the Tenth Circuit

The Tenth Circuit clarified on appeal that when attempting to figure out if POST accreditation is a part of essential job functions, it must first ascertain whether the DOC mandates that every worker in Hennagir’s position fulfill the duty, which it does. The court takes into account a number of considerations when deciding whether an official function is necessary, such as:

The employer’s assessment of which tasks are necessary.
Written job descriptions are created prior to posting job openings or conducting interviews with candidates.
The length of time required to complete the task.
The repercussions of not making the worker complete the task.
The prior employees’ work experience in the position; and
The present employment history of workers in comparable positions.

The court stated that the evaluation “is not meant to oblige the employer to lower business standards or to rethink them.” The employer has the authority to define what a position is and what is needed to accomplish it, so long as any job specifications are relevant to the job, consistently enforced, and in line with business needs. “The ADA doesn’t restrict an employer’s freedom to establish or amend the substance, nature, or duties of a job,” it added, adding that the “essential job functions” question is not used in relation to the employee’s hire date.

All medical assistants at Hennagir’s institution were obliged to possess POST certification, the court decided, as DOC decision-makers uniformly agreed on its significance. Despite the fact that the function is rarely performed, the court notes that there is always a chance that it may be performed and that the consequences of not obtaining certification could pose a major risk for staff safety and security. Accordingly, the certification criterion was deemed as part of the essential job functions by the court.

The Tenth Circuit then looked at whether Hennagir could carry out the contested function with any kind of reasonable accommodation. It summed up her desired accommodation as enabling her to continue performing the same job activities without obtaining POST certification, possibly under a new title.

The court ruled that “job restructuring, temporary or altered work schedules, relocation to a vacant post, and suitable adjustment or adjustments of tests, training materials, or rules” are examples of reasonable accommodations. Although “the aim of adaptation is to enable a staff member to execute the basic activities of her job,” it further stated that employers are not obligated to change or eliminate an important function of the job in order to make accommodations for a disabled worker.

Hennagir’s suggested adjustment was deemed unsuccessful by the court because it effectively asked the DOC to remove an important element of the essential job functions. In order to fulfill her request, a new post would have had to be created, and the court ruled that “it is not fair to force a company to create a fresh job for the goal of transferring a worker to that job.”

Hennagir concluded by saying that the DOC declined to participate in the participatory method of creating a fair accommodation. The employee will not be entitled to compensation even if the employer does not fulfill its interactive duties to help obtain a reasonable accommodation. She had to demonstrate that a suitable accommodation was possible, which was not done. The court ruled that it was not required to decide on that claim.

The bottom line

When deciding whether an occupational duty is “essential” according to the ADA, the Tenth Circuit uses a strict criterion. Even a function that is rarely used can be crucial if the employee’s failure to do so could have major safety or productivity repercussions.

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Essential Job Functions and the ADA: Insights from the Tenth Circuit Decision

Introduction

Background

Numerous charges

Ruling of the Tenth Circuit

The bottom line

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