Avoiding Non-Compliance with the ADA for Emergency Response Personnel
An employee is not protected under the Americans with Disabilities Act (“ADA”) if he is unable to perform the essential functions of the employment position he holds. But what makes a particular job function “essential,” and can a job function be “essential” even if it is rarely performed? Last month, the Eleventh Circuit joined the Sixth and Eighth Circuits in holding that a job function that is rarely performed may still be considered “essential.” In Bagwell v. Morgan County Commission,1 the Court found that, although certain maintenance tasks were rarely required, a park groundskeeper was not qualified to do the job in part because she could not safely perform such tasks.
Obviously, whether a rarely performed job will be deemed an “essential” job function will depend on the job circumstances. Nevertheless, the Eleventh Circuit’s reasoning could easily be applied to employees who are required to perform tasks during emergencies — which, ideally, would be rare occurrences. For example, as the Sixth Circuit found in Wardia v. Department of Juvenile Justice,2 a worker at a juvenile detention center who is unable to physically restrain juveniles may not be qualified for the job even if restraining juveniles is rarely required. Employees who have highly specialized skills who are called upon to utilize their expertise in uncommon, or even unique, situations would also fall into this category.
The availability of other employees who can perform a rarely performed task may influence the analysis of whether the task is essential. For example, in Knutson v. Schwan’s Home Service, Inc.,3 the Eighth Circuit held that it was essential for a home grocery delivery company’s depot manager to be DOT-qualified because he himself might need to occasionally drive a delivery truck. However, a task such as using a ladder to escape in case of an emergency would be a task that only the employee can do himself or herself and may be the type of essential, but rare, task for which inability to perform may disqualify the employee from the position.
The Eleventh Circuit relied on the employer’s written job description to find the rare tasks were “essential” under the ADA. This fact reflects the key takeaway here — employers who need employees to respond to emergencies or perform other rarely needed tasks should make sure those expectations are clearly stated in every writing that describes the job and those tasks should be identified as “essential.”
1 Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694, *4 (11th Cir. Jan. 18, 2017).
2 Wardia v. Department of Juvenile Justice, 509 F. App’x 527, 531 (6th Cir. 2013).
3 Knutson v. Schwan’s Home Service, Inc., 711 F.3d 911, 915 (8th Cir. 2013).
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.