Too often federal employees call me with issues about getting what are otherwise very reasonable disability accommodations from their supervisors. The problem is that federal agency managers are normally trained to treat all employees the same. That works for many situations, but not for reasonable accommodations. Under the ADA, treating everyone the same can actually be illegal and result in unlawful discrimination.
To avoid giving employees reasonable accommodations, federal managers often change, delete, or rely on certain “essential functions” of a job that do not really exist. A big one is requiring “in person attendance” to deny telework accommodations. When managers rely on or create false statements of a job’s “essential functions”, though, that often can constitute disability discrimination.
One common tactic is to fudge what are called the “essential functions” of the position. While in general the employer has the right to define what an essential function of a position is, the courts and the EEOC determine whether what the employer claims to be an essential function of the job actually is one. An employer can claim a task or duty is an essential function, but that isn’t necessarily legally binding. The employer’s judgment is not the sole basis for determining an essential function.
“Essential functions” are often hard to define in the abstract. They depend on the specifics of the job. The “essential functions” are what your job is really about. The EEOC refers to these as “fundamental job duties.” For example, if your job is to drive a tractor trailer, the essential functions of your job include being able to see clearly enough to drive, using your hands to drive the truck, sitting for hours at a time, etc., and many others.
Essential functions are specific to a particular person’s job. For example, a truck driver may need to sit to be able to drive. But there’s a big difference between a route that takes five hours to drive and one that takes ten minutes. It’s not an essential function of a driver’s job to sit for five hours at a stretch if all his routes take only ten minutes. Essential functions aren’t about what a job in general might be about. It’s about what this specific job that this specific person does requires.
Why management fudges essential functions to avoid ADA reasonable accommodations.
The ADA says that managers do not have to provide an accommodation if that accommodation eliminates an essential function of the job. Said another way, you can’t get an accommodation if it would interfere with an essential function of your job. So whether a particular task is actually an “essential function” can determine whether the person is entitled to a particular accommodation.
Management sometimes tries to change these to avoid having to provide an accommodation. The most common fudge I see in my practice is to require employees to be physically present at work. Though this has decreased during the pandemic, it’s become much more common as agencies return to work.
How management fudges the essential functions.
It often works like this: Employee requests telework for a physical disability. Manager does not want to provide telework. Manager believes it’s unfair and then other employees will request telework. [This is, by the way, virtually never a legal basis for denying accommodations.] Manager finds some marginal aspect of the job that requires Employee to be at work, such as making coffee. Manager adds this to the list of official “essential functions” and denies the accommodation request.
What’s wrong with this? Well, making coffee is, for federal employees, never an “essential function.” There’s no employer-provided coffee in federal workplaces. But more to the point, making coffee, even in the private sector, is at best a “marginal function” of virtually any job that is not in food service or office administration. If it’s a marginal function, it can be either eliminated or given to someone else. That’s actually a requirement of the ADA. That’s a simple example. It can get more complex, but the idea is the same.
Employers will often force employees to take leave, which is not a reasonable accommodation unless there is no alternative. The EEOC has issued guidance indicating that leave is not effective because it deprives the employee of the ability to earn money.
Actual cases have found illegal disability discrimination where functions are fudged.
A recent case before the Equal Employment Opportunity Commission shows how employers try this illegal ruse. In Hae T. v. Bernhardt (Interior), EEOC Case No. 2019003385 (Sept. 23, 2020), a park ranger interpreter was told that she could not telework part of the week because she had to be physically present to interpret. This sounds reasonable on its face. But the reality was that the interpreter only needed to be present to provide interpretation around 5 hours per week. That’s not a lot. The vast majority of the time she did office administration work for the park that could easily be accomplished from anywhere.
The ranger interpreter requested to telework on certain days when she had a flare up in her medical condition. That’s all that she needed for her disability. Management denied it, stating that physical presence at the office was an “essential function.” Somehow a function that required only five hours per week of the employee’s time became so important that she had to be present at the office even when that was not required.
The EEOC found this to be illegal discrimination. Under the ADA, using unrealistic essential functions to deny a qualified employee a reasonable accommodation is illegal. It is no excuse that there is some function of the job that could be consider an “essential function” if there is no real requirement that this employee perform that function.
A lot of managers, HR professionals, and even agency lawyers get this wrong (a lot). They make the mistake of believing that the agency statement of essential functions is the only definition. But often those descriptions on paper do not match what actually happens on the ground. Hae T. (above) is just such an example. There, the agency felt entitled to dismiss claims of failure to accommodate based on its own judgment on paper of what the essential functions of the ranger’s job was. The EEOC corrected this and determined that by fudging the actual requirements of the job, the agency engaged in disability discrimination.
What you can do about management fudging your job description.
Employees can take a number of steps to avoid this situation. The most important is to stop management from creating new job functions or applying non-existent ones. Federal jobs often come with an approved list of essential functions. But often these don’t apply, apply only some of the time, or only apply in ways that still can allow for accommodation. The ADA requires more than a mechanistic review of a list of essential functions.
The ADA also requires an “interactive process” for reasonable accommodations. During this process, employees should feel free to discuss what functions of the job are actually essential. Particularly with disability program managers, they will have no idea other than what they’ve been told by someone else. Employees know what the job requirements are for their day-to-day tasks. In some cases, management doesn’t know. It may be important to inform them specifically of what the job requirements actually are. Doing so in writing ensures that management can’t later claim not to know about it.
Getting an advocate is also often helpful. Doing this alone is stressful. Often, employees would rather say nothing than stand up against their supervisor. No one wants to bite the hand that feeds them. But the alternative can be much worse. Not getting the accommodation you need can worsen your medical condition. This can go on for years even to the point of forcing an employee to go on disability retirement.
If you have questions about your accommodation needs, call a qualified attorney and discuss your specific needs and how to obtain the right solution for your situation.