I recently relocated my office. Therefore, that is why you haven’t seen an entry in a little bit. I am now settled in and will get back to regular blogging. Thank you for bearing with me.

With the amendments to the Americans with Disabilities Act, litigation will now shift from whether a person has a disability in the first place to other areas. One of those areas is going to be whether the person is otherwise qualified. To be otherwise qualified under title I of the Americans with Disabilities Act, you have to meet the education, skills, training, etc. of the job and you have to be able to perform the essential functions of the job with the without reasonable accommodations. The question that arises is how do you go about determining what an essential function of the job is? When you do that, how do you go about the pending litigation over essential functions of the job?

The EEOC has said that it will look at several different factors in figuring out what are the essential functions of the job. Those factors are: the employer’s judgment;

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n).

However, it doesn’t have to be so complicated. Rather, think of essential functions of any element of the job fundamental to achieving the job’s purpose. The elements that are not fundamental can be classified as marginal functions.

Accordingly, here are some other things to think about. First, make sure the essential functions of the job are accurate and current. That is, make sure that the essential functions reflect what actually happens rather than what is on the piece of paper. Therefore, a company would do well to have a system where the essential functions of the various job that they have are reviewed on a regular basis. Second, do not confuse essential functions with major life activities. For example, seeing the balls and strikes is not an essential function of being at home plate umpire. Rather, calling the balls and strikes accurately is the essential function.

Second, do not confuse essential functions of the job with tasks. That is, is 10 key data entry an essential function of the data entry job? The answer is no. The essential function is entering data at a certain rate of speed and not the mechanism that accomplishes it.

Third, whenever possible, it is helpful to make the essential functions of the job as precise as possible. That said, while you do want to make the job’s essential functions as precise as possible, reasonable inferences are permissible. Also, multiple duties associated with those essential functions are also permissible. Fourth, it helps if the company is consistent across the board with respect to those essential functions. For example, if a retail store could show that store managers routinely have certain functions regardless of where they are store managers that would be helpful.

A company that did this just right recently was Walgreen Company. I suppose that is not surprising as they have been leading the charge recently with respect to hiring persons with disabilities. In Jones v. Walgreen Company, 679 F.3d 9 (First Cir. 2012), Walgreens played their cards just right. In that case, a long-term employee of Walgreens, some 20 years, injured her knee. Id. at 11. One thing led to the other, including surgery, and she was let go for her inability to perform the essential functions of the job. Id. at 11-13. The case eventually went to the First Circuit Court of Appeals and they affirmed the District Court’s grant of summary judgment for Walgreens. Id. at 11. What Walgreens had going for it was that it did have precise essential job functions. Also, those functions were capable of reasonable inferences that led to the only possible conclusion that the manager could not perform the essential functions of the job with or without reasonable accommodations. Walgreens also was able to have a variety of different managers come in to explain what those essential functions of the job reasonably meant. Finally, something that you are likely to see more of, Walgreens had a disclaimer in their job description that said that, “the job description is to be used as a guide for accomplishing company and department objectives, and only covered the primary functions and responsibilities of the position. It is in no way to be construed as an all-encompassing list of duties.” Id. at 15. Therefore, the disclaimer gave Walgreens wiggle room so that the essential functions of the job as they were written could be reasonably construed to include a variety of different duties.

Any company would do well to read this case and to adopt it if the company wants to successfully set up a system to enable it to adequately defend any litigation arising over essential functions of the job.