When "they" come to check up on you, whether they’re agency investigators or class-action-minded attorneys, the first stop is the job description. Today we’ll begin our look at three of the fed’s favorite job description checkpoints: ADA, FLSA, and discrimination.
From the ADA standpoint, the most important thing the job description does is to delineate the essential functions. This is because in accommodating employees with disabilities, they must be able to accomplish the essential functions of the job with or without reasonable accommodation. Inability to perform nonessential functions does not disqualify the individual.
Here are a few pointers:
A function may be essential in one setting, but nonessential in another. For example, if a worker spends 90 percent of his time operating a particular piece of machinery, that’s an essential function of his job. But how about for the person who operates that machine during the regular operator’s lunch hour? That might be essential if:
1. The machine has to keep running (say it’s filled with molten plastic that would congeal if it stops running), and
2. There’s no one else who can be trained to run the machine.
However, if the plant has 30 people who are trained to operate that piece of machinery, the task of running it over the lunch hour wouldn’t be essential.
The point? It’s not necessarily the percentage of time a person spends on the task that makes it essential. The setting and situation have to be taken into account as well.
Describe an essential function more as an outcome than a method. For example:
Not "uses hand truck to move heavy boxes,” but "moves heavy boxes."
Not "walks from station to station," but "moves from station to station."
Do it now, not after the fact. If you try to craft your essential functions list after someone raises a complaint, it won’t be credible.
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How to Determine ‘Essential’
Here are some questions you can use to determine whether a job function is essential:
- Does the position exist to perform this job function? (That would make it essential.)
- What is the employer’s judgment regarding which functions or job requirements are essential? (The employer’s view will be given due weight, but won’t be determinative on its own.)
- Would the position be fundamentally altered if this function or job responsibility were altered? (That suggests that it’s essential.)
- Is the number of employees to whom this function or job requirement could be given limited? (If yes, that makes it harder to pass off this function.)
- Is this a highly specialized function or job requirement? (Again, that makes it harder to cross-train someone else to do it.)
- What would be the consequences if this function or job requirement were not included? (If there are no consequences, it’s likely not essential.)
- Does the current or past incumbent perform this function or job requirement? (If not, it’s probably not essential.)
- Are the essential functions of this job linked to a specific location? (This could make it more difficult for others to take on this responsibility.)
In addition to making your essential/nonessential determination, it’s helpful to pin duties down with a clear description of requirements and conditions. You might mention:
- Supervision (how much, how often)
- Physical requirements (e.g., sitting, standing, grasping). For lifting or carrying, also specify pounds (e.g., able to lift 50 pound several times each day).
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- Mental requirements (e.g., thinking analytically), discriminating colors, making decisions, remembering names)
- Performance requirements (e.g., staying organized, meeting deadlines, attending meetings)
- Environmental factors (e.g., inside/outside, hot/cold, dusty, odors, fumes)
- Tools and equipment (e.g., computer, forklift, respirator)
- Other requirements (e.g., certificate, license, education)
While it is important to be detailed and precise, be sure that all the elements you list are true. If several of the things listed are not true, that inaccuracy will color everything you claim. (For example, if you say "lifts 50 pounds daily" but the person in the job never actually does that, your essential functions won’t mean much.)
In tomorrow’s Advisor, FLSA and discrimination issues, plus a look at a unique collection of job descriptions that solves your job description requirements.