By William Wiley, June 14, 2017

I wish I was as smart as Ernie Hadley and Deb Hopkins. Ernie and Deb teach the fabulous FELTG EEOC Law Week seminar at least twice a year. A big part of that program is an explanation of an agency’s obligation to accommodate an employee’s disabilities. To understand that responsibility, an agency practitioner must be able to identify the “essential functions” of the position occupied by the disabled employee.

So exactly what is an “essential function”? As Ernie and Deb explain it, summarizing from 29 CFR 1630.2(n)(2), here are factors to consider in determining if a job function is an essential job function (rather than just a non-essential function):

  • The reason the job exists is to perform that function
  • There are a limited number of employees available to perform the function
  • The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function

To determine which functions are essential and which are not, Ernie and Deb summarize from 29 CFR 1630.2(n)(3) to identify relevant factors:

  • Employer’s judgment on functions that are essential
  • Written position description
  • Essential function must be one that the employer requires employees to perform
  • Time spent on function
  • Size of the employer’s available workforce
  • Employment history of other employees previously or currently in the position at issue
  • Consequences if not performed, and
  • Terms of collective bargaining agreement

Once we identify a job’s essential functions, we then have the employee take those functions to her physician for assessment. The physician’s assessment involves the answering of three questions relative to each impacted essential function:

  1. What is the expected duration of a medical limitation that would prevent the employee from performing the function?
    • This information helps the agency determine whether the medical problem actually meets the legal definition of “disability” and if so, what accommodation might be reasonable.
  2. Is there an accommodation that the agency can provide that might help the employee perform the function?
    • If the physician says “no,” and the agency cannot identify an accommodation after discussing the matter with the employee, then the next step is to try to find the employee a vacant position in which he can perform acceptably with the disability.
  3. If the physician recommends an accommodation, what is it and how will it allow the employee to perform the function?
    • The physician’s recommendation is a good starting point, but of course, as Deb points out in the first article in this edition of our newsletter, the agency retains the right to determine which accommodation it will provide if more than one is reasonable.

And here’s where I hit a disconnect between what EEOC’s regulations say we are to do and the reality of getting an analysis from a health care provider. It seems that EEOC wants us to identify a job duty as an essential function, one that might be found in a position description; e.g., “cases mail” from the position description of a mail carrier. But if we ask the physician to tell us if the employee can “case mail,” how does the physician know what the physical and mental requirements are to do that work? Does it involve moving things around? If so, what size and weight might those things be?

I was working with a client several weeks ago, a client trying to figure out how to accommodate a disabled employee. The client dutifully read the employee’s PD, considered the factors listed at 29 CRR 1630.2(n)(3), and determined that an essential function of the position was “timekeeping audit.” As I was drafting the memo requesting that the employee obtain his physician’s analysis of the function in consideration of the employee’s disability, I was struck by how little information we were providing to the health care provider, information on which we are asking the provider to base a medical determination critical to the employee’s continued employment prospects. I guess the provider could ask the employee what the physical and mental requirements are to “audit timekeeping,” but do I really want the employee providing that information to the physician? Shouldn’t it be management who decides what the mental and physical requirements are of a position?

So instead of just telling the physician that the employee needed to perform the essential function of “timekeeping audit,” I came up with the following derivative functions:

  1. Must be able to think objectively and analyze mathematical information.
  2. Must be able to communicate orally and in writing.
  3. Must be able to work in stressful situations sometimes involving confrontation with coworkers.

These functions seem to me to be different from what EEOC is asking for. They are not “the reason the job exists,” but rather physical and mental tasks the employee must perform to accomplish the job. Still, they seem to me to be more realistic requirements to ask the health care provider to assess than simply saying “cases mail.”

Fortunately, Ernie and Deb understand EEOC regulations better than do I. They do a terrific job of explaining this stuff to our seminar participants. As for me, thank goodness they can do it so that it is not an “essential function” of my position. If it were, I would need to be on the lookout for a vacant job into which I could be reassigned where I don’t have to understand EEOC.

Now, wouldn’t that be just lovely. [email protected]

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