September 25, 2007
Is Punctuality Always an Essential Function?
by Douglas H. Duerr and Lisa J. Bauer
While most cases interpreting the Americans With Disabilities Act (“ADA”) have focused on whether a person is “disabled” or whether an accommodation can be reasonably made, employers have had little guidance on how to determine whether a function is “essential” to a particular position. The Eleventh Circuit has recently provided some guidance, emphasizing that a “one size fits all” approach does not apply.
In Holly v. Clairson Industries, the plaintiff, a 17-year employee, who was a paraplegic, was discharged for excessive tardiness pursuant to the company’s newly-adopted, no-fault punctuality policy. The company defended against the subsequently-filed ADA claim by arguing that punctuality was an essential function. The district court granted summary judgment to the company, agreeing that strict punctuality, as defined by the new policy, was an “essential function” of the plaintiff’s job within the meaning of the statute, and that the plaintiff was incapable of performing that function “with or without a reasonable accommodation.” Moreover, the district court determined that the plaintiff had failed to show that the policy had been discriminatorily enforced against him as compared to nondisabled employees.
The Eleventh Circuit, however, reversed, concluding that genuine issues of material fact existed concerning whether strict punctuality was an “essential function” of the plaintiff’s particular position. According to the court of appeals, the district court had erred in holding that the plaintiff was required to present evidence that his employer treated him differently than his nondisabled co-workers. The court cautioned employers that while their view of what job functions are essential will often be given great deference by the courts, that view must nevertheless match the facts of the individual case. In this case, the company's uniform, no-fault plan had failed to recognize that punctuality may not be essential to all positions. Contrary to the company’s argument, the facts showed that the plaintiff did not work on the assembly line and, furthermore, his supervisor testified that punctuality was not important so long as the work was done.
How should your company determine a position’s essential functions while remaining consistent with decisions such as Holly and the standards of the ADA?
• Essential functions are those job duties fundamental to a particular position. Remember that an essential function is the completed task, not how the task is completed. Consider whether the position exists to perform that function, whether there are a limited number of employees available who could perform that function, and whether the function is highly specialized.
• Identify the essential functions of the position when it is first established or when the position is vacant and prior to seeking applications.
• Maintain detailed and updated job descriptions. Only by clearly identifying the essential functions of a particular position will an employer know whether someone is a qualified individual with a disability, and which reasonable accommodations (if any) may be appropriate. Employers often are prohibited from claiming functions are essential when they are not included in the job description.
• Be consistent. Work experience of people who have performed the job and the experience of people currently performing the job may be the best indicator of whether a particular job function is essential. An employer must show that the requirement is consistently – not selectively – enforced.
• Be flexible. Employers generally consider attendance, scheduled time, overtime, and ability to get along with others essential, but these issues are extremely fact specific and may require flexibility.
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