Fake Essential Functions

I speak with many federal employees whose management has recently added “essential functions” to their job descriptions solely to avoid providing reasonable accommodations. This can amount to discrimination if the Agency denies a reasonable accommodation because of a “fake” essential function. Frequently these arise in telework situations.

I call them fake here because they don’t have any reality behind them. They come in two general flavors: (a) these functions are actual job functions that an employee performs either once in a while or almost never; or (b) they are job functions that are brand new and not required for the position. In the latter situation, new job functions are obviously not essential functions if they are not required for the position. In either case, if the function is not “essential” under the disability laws, then the Agency has to make accommodations for it.

Stretching job functions to deny reasonable accommodations

For the first example, imagine an employee who has to be present in the office once per quarter to review some paperwork. It’s a real function of the job, and it requires the employee actually to be physically present in the office. Is it an essential function? Maybe. But does it require that the employee be physically present every day? Almost certainly not. The fact that the paperwork must be reviewed once per quarter does not alone make physical presence in the office every day necessary. 

The Department of the Interior was recently found to have discriminated against an employee in a similar situation. See Hae T. v. Bernhardt (Interior), EEOC Case No. 2019003385 (Sept. 23, 2020). In that case, the employee was an interpreter for the National Park Service. Interpretation requires that the employee be physically present some of the time. But the employee requested telework only some of the time (situational telework), when it would not interfere with her translation duties, such as when doing paperwork on the computer. 

The Agency denied her situational telework because, according to the Agency, she needed to be physically present at work all the time for translation duties. Wrong, according the EEOC. Being at work was sometimes required to perform her essential duty of translation. But she didn’t request telework for those times. The Agency should have granted telework outside of those times. 

This is an example of management stretching a job function that only required physical present some of the time so as to require physical presence all of the time. This was all to deny the employee a simple, essentially costless reasonable accommodation. 

Agencies can’t rely on policy or consistency with other employees

The conclusion that the agency’s claimed ‘essential functions’ in Hae T. were fake was further bolstered by the fact that the Agency claimed that if it allowed one employee to telework, it would have to allow other employees to telework. This is a terrible argument, and it’s shocking that a federal agency would make it. 

As the EEOC points out in its decision, such a claim is bogus under the disability laws, the ADA and the Rehabilitation Act. Employers have to change their policies if that would be required to provide a reasonable accommodation, and would otherwise not cause an undue hardship (usually meaning it would be very and unduly expensive). Remaining ‘consistent’ to agency policy is virtually never an adequate reason to deny an otherwise reasonable accommodation request.

Take a step back and realize what that argument would mean. If Interior’s argument were correct, that adhering to policy for the sake of consistency among employees were enough to justify denying an accommodation, what obligation would the agency ever have? Further, the Agency could avoid Congressionally mandated, statutorily required accommodations by just, what, having an office policy? The implication would be that the reasonable accommodation requirement would simply disappear if that were the case. Statutory law does not work that way, and Interior and its management should know better than that.  

The EEOC further points out in its decision in Hae T. that, to the extent that other employees would feel entitled to a similar accommodation, this is no excuse. The disability laws require agencies to make reasonable accommodations for an individual’s disability needs. It requires federal agencies to treat employees differently, if necessary for a reasonable accommodation. Again, the argument is entirely specious. If the Agency could rely on how other people felt about a reasonable accommodation, would that justify failing to follow to federal statutory law?  Nowhere else in the law is this even close to a good argument. 

Fighting management about fake job functions

In my experience, management simply does not understand the reasonable accommodation obligation. It’s not just managers, either. Human resources doesn’t understand it. Even agency attorneys who litigate this stuff frequently don’t understand how reasonable accommodations work and what the agency’s obligation is. 

Hae T. is a perfect example of this. It is ridiculous to argue that the agency should be excused from providing a reasonable accommodation if doing so would permit other employees to ask for it and to set a precedent. Suggesting this is fundamentally at odds with the ADA and the reasonable accommodation obligation under that law. 

So what can an employee do? Educate, educate, educate. And if that doesn’t work, then you have to file an EEO case. There are really very few resources to help management to understand their obligations for reasonable accommodations. Additionally, every disability and every job is different. Even jobs that seem to be the same on their face can be totally different in what the actual job function is, depending on the needs of an office, a particular agency, or the work assigned to that particular employee. 

Training is often lacking, so education is necessary

The law is written in very general terms, and it has to be to be flexible enough to cover every situation. The same is true of regulations. These are complex situations and there are not always simple answers. Unfortunately, management and HR can only realistically deal with simple answers. Providing the training necessary to understand all reasonable accommodation issues is not very practical. Nevertheless, it appears that most agencies do not even provide the training necessary to understand some reasonable accommodation issues. 

Many federal agencies also have what is called a Reasonable Accommodation Committee (RAC) to handle part of the reasonable accommodation process. Normally, agencies limit the determinations from the RAC solely to whether the employee has a disability. The agency ultimately depends on management to determine whether a reasonable accommodation will be provided, and what that accommodation will be. At that point, guidance is often times nil. 

If you have a problem with your federal agency providing reasonable accommodations, and there are many, many such instances, understand that you are not alone. Most management does not have the training necessary to understand its obligation under the law. Presenting a reasonable accommodation request, along with required documentation, can be complex. 

I strongly recommend that anyone who is having difficulty with their federal employer’s response to reasonable accommodation requests find an attorney who is experienced in handling these issues. These issues usually can be resolved up front with a minimum of effort. However, once a decision has been made and this has greatly affected employees life, it is much harder to undo the decision and its consequences for that employee.  

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