Question: Our receptionist is responsible not only for answering phones and greeting visitors, but also for keeping the adjacent coffee room clean. She now says she is allergic to all cleaning products and cannot clean the coffee room. We believe this is an essential function of her job. If we can’t find a reasonable accommodation, can we remove her from the position?
Answer: Be careful on this one; a court may have a very different perspective on whether the cleaning duties are an essential function of this job under the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) says relevant factors could include:
• your judgment as the employer;
• written job descriptions prepared before advertising the job;
• the amount of time spent performing the task in question;
• the consequences of not requiring the employee to do the task;
• the terms of a collective bargaining agreement;
• the work experience of past employees in the position; and
• the work experience of current employees in similar positions (29 CFR 1630.2(n)(3)).
It’s possible that the cleaning duties are a marginal job function and could be assigned to someone else.
You may also want to know about two recent court decisions that provide surprising approaches to analyzing essential functions and reasonable accommodation under the ADA.
The Seventh Circuit U.S. Court of Appeals (normally an employer-friendly court) recently wrote a hairdresser’s task of pushing nursing home residents in wheelchairs to and from hair appointments may not be an essential function “if it was so small a part that it could be reassigned to other employees at a negligible cost to the employer.” Historically, it has been clear that an employer is not required to eliminate an essential job function under the ADA. The court, however, took into account the amount of time the employee said it took her to push the wheelchairs (less than 2 hours per week) compared to the number of hours worked by available qualified staff (300 hours per week). As a result, the court found the wheelchair duty amounted to less than 0.33 percent of available staff time. The court sent the case on to a jury to determine the facts (Kauffman v. Petersen Health Care VII, LLC dba Mason Point, 7th Cir, Oct. 2014). It remains to be seen whether courts outside of the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) will follow suit.
Recently, a federal district court in Washington made an interesting distinction between an essential function and the method of performing the function. An HR analyst suffered a stroke that limited her ability to form words and engage in fast-paced conversations. She was eventually terminated because her employer said verbal communication was an essential function of the HR analyst role. The court, however, said the essential function might actually just be “communication” and the “verbal” aspect might just be one method of doing so. The court criticized the employer for not giving the employee a chance to attempt any of her suggested accommodations and sent the case on for trial (Carlson v. City of Spokane, ED Wash, Oct. 2014).
If an employee is unable to perform a job function for a medical reason, contactyour Vigilant employment law counsel to help you determine whether the function is essential and to explore ideas for reasonable accommodation in California, Washington and Oregon.