Dear Rita: Help! I'm the executive director of a nonprofit with 35 employees. Recently, one of our employees said he can't drive anymore due to vision problems. It's his job to drive to different client sites to provide training . . . we serve a rural community without much public transit. I looked at his job description -- which is outdated -- and it says nothing about driving! I can't believe it isn't listed there, but it's clearly part of his job and necessary to reach our clients. I know the Americans with Disabilities Act (ADA) says that employees must be able to do the essential functions of the job, but we never put driving into his job description. Now what do we do? Signed, Wish I Had a Time Machine
Dear Wish I Had a Time Machine: This sounds like a frustrating learning opportunity. Like you, many employers would often do things differently if they could go back in time, since managing employee disabilities is a huge area of risk, yet rarely clear-cut.
First let's talk about what you can do so that in the future you won't have a thorny situation in front of us as you do now. Then we'll talk about what to do given the old job description in place.
Why have job descriptions that are compliant with ADA?
Framing job descriptions properly as related to disabilities will help you recruit a suitable applicant pool, be fair to people with disabilities, and protect your organization from charges of disability discrimination.
The ADA, which applies to employers with 15 or more employees, defines a qualified individual with a disability as someone who has the necessary skill, experience, education, and other job-related requirements of the position and can perform the essential functions of the position with or without reasonable accommodation. See 29 CFR sec. 1630.2; 42 U.S.C. SS 12111(8). (Note: Some states have a lower threshold for accommodating a disability, such as California, which has a threshold of employees under the Fair Employment Housing Act.)
The ADA permits employers to define a job and the functions required to perform it, including qualifications and work quality and quantity standards. See 42 U.S.C. SS 12111(8). Although ADA doesn't require written job descriptions, having a written job description before advertising or interviewing applicants is strong evidence of whether a particular job function, such as driving, is considered an essential function. See 29 CFR sec. 1630.2(n)(3). For this reason, keeping job descriptions current listing all essential functions of the job is an essential tool in managing risk of ADA claims.
How do we determine the "essential functions of the job"?
Start by gathering as much information as possible -- you might interview someone doing a similar job or working with that position, for example. Consider expected results or outcomes of the position, mental, sensory, physical and environmental requirements, social and communications skills, education and training requirements, attendance and any specific work schedule requirements, among other things.
Essential functions are the "fundamental job duties" of the position, and don't include functions that are only marginal to the job. A job function may be considered essential because:
- The position requires performing that function
- A limited number of employees are available among whom the performance of the job function can be distributed, and/or
- The function is highly specialized or requires special expertise.
What should the job description look like?
Start off with a statement that "the essential functions of the position include, but are not limited to..." to make it clear what the essential job functions are and that the list is not exhaustive. Also cover the following topics:
- Sensory and physical requirements for essential functions. For example:
o "Use full range of peripheral vision to drive a bus, including at night."
o "Answer helpline calls via telephone and communicate information to callers."
o "Read financial records and detailed charts and graphs on a computer screen."
o "Lift children weighing up to 50 pounds intermittently to provide hygiene care and other client services."
o "Ability to drive organization's car to service clients' needs."
- Licensing and/or regulatory regulations that might apply
- Requirements regarding regular and reliable attendance and work schedules.
- Interpersonal requirements, such as "the ability to interact with co-workers in a collegial manner to accomplish common tasks" if the job involves interaction with co-workers.
- Requirements regarding stress management, such as "the ability to execute job duties under highly stressful circumstances" if the job involves last minute deadlines or other difficult situations.
- OSHA-required hazardous exposure disclosure and environmental and safety conditions both inside and outside the place.
- Work environment factors including ventilation, outdoor weather conditions, wet or humid conditions (non-weather), extreme cold (non-weather), extreme heat (non-weather), fumes or airborne particles, toxic or caustic chemicals, blood-borne pathogens, risk of fire or explosion, risk of electric shock, risk of radiation, risk of drowning, prolonged exposure to vibration, or loud noise level.
Finally, include the disclaimer: "Management retains the discretion to add or to change the duties of the position at any time." For documentation purposes, at the very end include a revision date.
Okay, but what do we do now that we have an outdated job description?
Most jobs evolve over time. It may seem unnecessary to update a written job description when an employee is doing the job well as that job has evolved. But at any point it's a good idea to document that the essential functions may have changed as the job has changed. In this case, it's important to document to the employee that driving is an essential function of the job because driving is necessary to serve clients.
But I'm worried that this employee will sue us for discrimination if we change his job description to include driving after he's said he can't drive anymore.
This is why there isn't a one-size-fits-all answer. Personnel issues are never clear-cut, but are always related to the specifics of the circumstances.
The ADA requires employers to engage in an "interactive process" -- essentially a dialogue with an employee with a disability to determine if there are any reasonable accommodations that would enable the employee to perform an essential function.
In this instance, use the interactive process to discuss with the employee how he would be able to serve clients in the community without being able to drive, and fully explore those options. In this discussion you can likely get agreement that driving is required to serve to serve clients. But explore this fully: are there clients who could drive to the office that he could serve? If that is the case, perhaps an accommodation could be made in clients served. If you can't accommodate in his current job, explore whether there is another vacant position that this employee could do instead. Remember that you don't have to make any and all accommodations, but you have to make reasonable accommodations.
Summing up: how to reduce risk
So don't worry. While it would be much simpler if the job description were current, you can still require the employee to serve clients in the community even if the job description doesn't currently list driving as an essential function. You're just going to need to fully explore if there are other accommodations or means by which the employee could perform this function with reasonable accommodations. Remember to document your efforts to explore alternatives with this worker including any accommodations offered and accepted.
You can also find helpful information at these web sites: Job Accommodation Network, Department of Labor Office of Disability Employment Policy and Occupational Information Network, Equal Employment Opportunity Commission, and America's Career InfoNet.
Ask Rita in HR is a regular column in Blue Avocado; this article was written by Ellen Aldridge, J.D., an Employment Risk Manager with the Nonprofits Insurance Alliance Group, which insures more than 14,000 nonprofits in the United States. Members of the Nonprofits Insurance Alliance Group with Directors and Officers insurance have free access to their Employment risk Managers with questions and problems to help keep them out of court.
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