Joshua A. Stein, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg BNA Labor and Employment Blog, in “ADA Rewards Employers That Stick to the Essentials,” by Kevin McGowan.
Following is an excerpt:
Courts are willing to defer to an employer’s judgment about a job’s “essential functions,” but employers can help them out by writing realistic job descriptions, says attorney Joshua Stein, a partner with Epstein Becker Green in New York.
Under the Americans with Disabilities Act, identifying “essential” job functions is a key step in determining if a worker with a disability is a “qualified individual” who may be entitled to reasonable accommodation under the act. Only individuals who can perform a job’s essential functions, with or without reasonable accommodation, are covered by the ADA.
An employer’s judgment about which parts of a job are essential is “given a significant degree of deference” by courts hearing ADA claims, Stein said at the National Employment Law Institute’s 28th Annual ADA and FMLA Compliance Update in Washington.
Employers therefore should ensure that their written job descriptions are complete, accurate, and reflect their employees’ “actual experience” in the position, Stein said.
Keep job descriptions short and resist the temptation to include so many duties and expectations that it “affects the credibility” of the descriptions, Stein said.
If a job description is outdated or inaccurate, then there’s “a substantial problem” in showing that the tasks described are essential, Stein said.
“Silence or vagueness” in a job description regarding a particular task “isn’t always fatal” to an employer’s ADA defense, Stein said. If employees’ “actual experience in the job” differs from the description, courts will weigh that as well in deciding what’s “essential,” he said.