December 2014 Bar Bulletin
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December 2014 Bar Bulletin

The ADA, FMLA and FLSA:

Why Employers Need Job Descriptions

By Trish K. Murphy

 

Do your clients maintain written job descriptions for their employees? Although the law generally does not require them, accurate and up-to-date job descriptions can serve as a critical tool for employers in preventing and defending employment claims under the ADA, FMLA and FLSA.

ADA: The Americans with Disabilities Act

The Americans with Disabilities Act1 requires covered employers to provide reasonable accommodation to qualified employees with disabilities, unless doing so would cause undue hardship for the employer. The ADA obligates an employer to reasonably accommodate a worker with respect to a job's essential functions, which are the basic job duties and requirements that an employee must be able to perform. Nonessential functions need not be accommodated; consequently a frequent issue in ADA litigation concerns whether a function was essential.

Evidence that a function is essential includes an employer's written job description prepared before advertising or interviewing applicants for the job,2 and a court may give the employer's job description substantial weight. For example, in Richardson v. Friendly Ice Cream Corp.,3 the court relied heavily on the job description in holding that a number of manual tasks were essential functions for a restaurant assistant manager, who could not perform those tasks even with reasonable accommodation.

Just as a job description can constitute compelling evidence in the employer's favor, an inaccurate or incomplete job description can undermine an employer's defense. Courts have held that a function might not be essential when it is not included in the job description. In Turner v. Hershey Chocolate USA,4 the court analyzed whether rotating among assembly lines to reduce the risk of repetitive stress injury was an essential function of a chocolate inspector's job.

Among the factors used by the court in holding that such rotation might not be an essential function was the fact that it was omitted from the job description. Therefore, even though Turner sought a partial exemption from rotation to avoid working at the most demanding station, there was a question of fact as to whether rotation was an essential function that she was required to perform, with or without accommodation.

FMLA: The Family and Medical Leave Act

The Family and Medical Leave Act grants covered employees the right to take protected leave for a serious health condition. When an employee seeks such leave, the job description setting forth the essential functions becomes critical in assessing the employee's leave and return-to-work requests.


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