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Latest News... When Are Rarely Used Job Functions "Essential"?

 The court in Hennagir v. Utah Dep’t of Corr., 2009 U.S. App. LEXIS 20163 (10th Cir. Utah Sept. 10, 2009), addressed the important question of whether a rarely required job function may nonetheless be an “essential job function” under the Americans with Disabilities Act.  The court concluded, “that when the potential consequences of employing an individual who is unable to perform the function are sufficiently severe, such a function may be deemed essential.” 

The Utah Department of Correction added physical safety training as a requirement for medical and clinical positions involving inmate contact.  They did not “grandfather” any of the employees that were already employed before the new requirement was added.  One of the employees was terminated because she could not meet the requirement and the DOC would not make an exception for her.

Reviewing the claim, the court observed that the requirement applied to all employees in the category and then analyzed whether the new requirement was fundamental to the position.  Under the regulations, evidence relevant to the question includes the following:

(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)(3).

While inmate attacks rarely occurred, the court recognized that the consequences could be “incredibly severe.”  These consequences outweighed the fact that the employee had never needed the emergency training during her eight years of employment and other claims relating to factors iii, vi and vii.  Therefore, under the specific circumstances of the case, the training requirement was essential to the job and the employee was lawfully terminated after she refused re-assignment to a distant facility.

Thursday, September 10, 2009

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