Can you perform all the essential functions of the job with or without reasonable accommodation?

Title I of the Americans with Disabilities Act (ADA) provides that employers have the discretion to determine which job functions they deem to be essential to their business. Employers should describe essential job functions in writing before advertising and interviewing for the job. Doing so will leave little room for confusion and ensure employers have adequately provided notice of the essential functions of the job.

Need to define essential job functions

Essential functions are job duties that employees must have the ability to perform, with or without a reasonable accommodation. Each job should be carefully evaluated on its own to determine essential functions. For example, a library clerk may have duties listed in her job description that include being available to open and close an office space from time to time in absence of the facility manager. However, this is not necessarily a function that is essential to perform the job of library clerk. 

Questions organizations should ask to define essential functions:

• Does the position exist to perform the duty in question (for instance, a welder’s essential job function is to to weld)?
• How many employees are available to perform the same function?
• Can the task be performed by anyone or does it require expertise (for example, an essential function of a software developer is to develop software, which requires specific expertise)?  

When a task is not fundamentally necessary to the performance of a particular job, it will be deemed as a “non-essential” function.

Essential job functions and reasonable accommodation

Employers may designate which functions are central or intrinsic to the performance of a particular job. A qualified individual must be able to perform the essential functions of their job with or without reasonable accommodation.  

A reasonable accommodation is any change or modification to a job that permits a qualified individual to enjoy the benefits and privileges of employment equal to those of employees without disabilities. Examples of reasonable accommodations may include: 

• Procuring or modifying equipment
• Reassigning non-essential job duties
• Modified work schedules
• Reassigning or reclassifying roles
• Providing effective communication
• Modifying the work environment to be accessible to persons with disabilities 
• Remediating technology to ensure it is accessible to assistive technology

When reasonable accommodation is requested to perform an essential function by a qualified person, the request must be given consideration by the employer. The objective is to provide the accommodations needed so that employees have the opportunity to perform the essential functions of their jobs, regardless of disability status. 

How EEOC determines essential job functions

Employers should objectively assess which job functions may be essential to a particular job  before they initiate the hiring process for it. In the event of a dispute, the Equal Employment Opportunity Commission (EEOC) may consider the following questions to evaluate whether a function is fundamental to the performance of a job:

• What is the employer’s written description of the job role and responsibilities which they used in their job ad to seek candidates?
• Does the very existence of the job depend on the particular job function (such as a data entry operator)?
• What percentage of the total work time is spent in performing that job function?
• What will be the impact on the business in case of non-performance of the job function?

While the EEOC is entrusted with the task of enforcing the ADA provisions that prohibit workplace discrimination, it encourages workers and employers to resolve misunderstandings or disputes through mediation, negotiation, or other alternative mechanisms of dispute resolution where possible.

For more information about building and maintaining an inclusive workforce, please check out AccessibilityPlus.

It’s illegal for an employer to discriminate against any current or potential employee because of a disability. This means that an employer can’t choose not to hire, to fire, or take other adverse employment action against a person because of their disability if they are otherwise able to perform the essential functions of the job “with or without accommodation.” But what does “accommodation” mean? What does an employer have to do for a current or potential employee with a disability?

What Is a “Disability” Under the Law?

An individual with a disability is one who “has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." 42 U.S.C.A. § 12102(2). Discrimination against workers with disabilities is illegal under the federal Americans With Disabilities Act (ADA) as well as the New Jersey Law Against Discrimination (NJLAD). These statues forbid discrimination based on an individual’s disability in nearly all aspects of employment, including hiring, firing, compensation, training, job assignments, promotions, fringe benefits (such as leave and health insurance), layoffs, retirement, and any other term or condition of employment. In New Jersey, if an employee ends their employment because of a disability, they are not disqualified from receiving state-based unemployment benefits.

When Is an Accommodation Required?           

The “essential functions” of a job are the fundamental duties of a job, regardless of whether they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions even with reasonable accommodation isn’t considered qualified for the job and isn’t protected by discrimination statutes. If an employee is able to perform the essential functions of their job with or without accommodation, however, their employer must provide reasonable accommodations for impairments related to their disability that affect any aspect of their job functions.

Who Decides What Accommodation Is Reasonable?

An employee must request accommodations based on the advice of a medical provider and provide notice of the requested accommodation(s) to their employer. Once that notice is provided, the employer and employee must engage in an “interactive process.” This means they actively discuss what aspects of the job are problematic and need an accommodation. The employer must provide options for possible accommodations, while the employee must provide input as to what will work for her needs. The employer may offer to provide light duty, alternative assignments, the option to telecommute, disability leave, or unpaid leave to disabled employees. The employee is not necessarily entitled to the accommodation of their choice so long as the employer offers an accommodation in good faith that would fulfill the worker’s needs.

Does an Employer Have to Accommodate a Disability?

Whether or not an accommodation is reasonable is a balancing test, and it may not always be possible to accommodate an employee’s disability without creating an unreasonable hardship for the business or its other employees. Ideally, the employer and employee can devise an accommodation that meets the needs of the employee without creating an undue burden. If it is impossible to provide an accommodation without creating an undue hardship for the company, however, the employer may not be required by law to do so.    

What Are My Options If I’ve Experienced Discrimination?

An employer may not penalize an employee for requesting or using an accommodation and is required to engage in good faith in the interactive process to attempt to find an accommodation that works for everyone. If you’ve been discriminated against or your employer has refused to accommodate you, you may have a claim for disability discrimination.

Victims of discrimination in New Jersey can file employment-related disability discrimination claims with two primary agencies. The Equal Employment Opportunity Commission (EEOC) handles discrimination claims under federal law, while the New Jersey Division of Civil Rights (DCR) handles discrimination claims under the NJLAD. 

If you believe you’ve been the victim of disability discrimination, contact an employment attorney experienced in federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide the best way to proceed.

Topics: Employment Law, Discrimination & Harassment

What does it mean to perform a job without accommodations?

What does essential functions of the job mean?