By Mark F. Kluger and William H. Healey
We hope the somewhat dramatic title got your attention. Job descriptions, which have recently become the focus of many employment law litigations, can make all the difference in the outcome of a lawsuit. That’s why we wanted your attention. When was the last time you looked at or updated your job descriptions?
Our December 30, 2016 article (available on our website) described the now common problem many employers face when the 12 weeks of FMLA ends and an employee with a serious health condition cannot return to work. Employers must then engage in the interactive process under the ADA to determine whether the employee can return and perform the essential functions of the job with or without a reasonable accommodation or whether additional leave is reasonable. At that point, an accurate definition of “essential functions” in a job description can be a game changer.
An employer recently learned this the hard way. The job description for a stock clerk position said that the employee must be able to lift 20 pounds “constantly” and 20 to 60 pounds “frequently.” The employer terminated a long-term stock clerk when his doctor’s note stated that he could not safely lift more than 35 pounds. In ruling that the employee had a viable ADA claim, a federal appeals court, after four years of litigation, relied on the testimony of the employee and his co-workers that they rarely had to lift more than 35 pounds and that the outdated job description on which the employer relied did not accurately reflect the “essential functions” of the job. While employers have a much greater chance of defending terminations based on an employee’s inability to perform accurately described essential functions, with or without a reasonable accommodation, that is not the only benefit of an updated job description.
Imagine the problems that result when a candidate with a disability applies for a position for which there is no ADA compliant job description. If, for example, the disability is obvious, an employer cannot legally ask the candidate questions like, “Can you regularly climb a ladder given that you walk with a cane?” However, when there is a job description that includes “regularly climbing a ladder,” then the employer can simply give the candidate a copy and ask the legally permissible question, “Can you perform all of the essential functions of this job, with or without a reasonable accommodation?” Without that dialogue, an employer’s failure to hire the candidate based on assumptions may result in a difficult to defend ADA litigation.
Accurate ADA compliant job descriptions are a critically necessary tool for employers to maintain today. If you need guidance on how to do them right, please let us know.