ADA's concept of essential functions of a job.

A disabled applicant applies for an office assistant's job. The current assistant performs general office jobs, assisting the administrative and the clerical staff. About twice a month he makes deliveries in his own car. The disabled applicant has no driver's license and so is unable to make deliveries.

The disabled applicant is otherwise qualified for the job. Is the employer required to hire the disabled applicant or can he be rejected simply because he cannot make deliveries?

The answer depends on whether the ability to make deliveries is an "essential function" of the job. If it is not an essential function, the employer can be required to accommodate the disabled applicant and change the job. The employer can be required to eliminate the delivery duties if it is not an essential function.

Under the Americans with Disabilities Act (ADA), employers are required to make "reasonable accommodations" for disabled employees and applicants. Reasonable accommodations include making existing facilities readily accessible to and usable by disabled individuals; restructuring jobs; modifying work schedules; reassigning jobs; acquiring, modifying or adjusting equipment; adjusting or modifying examination material, training material or policy manuals; and providing qualified readers or interpreters.

The Equal Employment Opportunity Commission encourages employers to initiate informal, interactive reviews with disabled individuals in need of accommodations. The recommended review process should identify the precise limitations resulting from disabilities and identify the potentially reasonable accommodations that could overcome those limitations.

Any such reasonable accommodations must allow the employee to:

* perform the'essential functions" of a job;

* not create "undue hardship" to the employer;

* not create a "direct threat" to the health or safety of the individual or of others.

Essential Functions

It is not enough to have the employer define the essential functions of a job. Rather, the determination will be made by federal courts in a case-by-case analysis. Some factors will be: whether all relevant employees actually perform the essential functions; the percentage of time an employee spends on a specific task; and evaluation of any task in light of the overall work performed.

Does the "essential function" standard mean an employer should have job descriptions? Some will say, "Definitely." However, written job descriptions can also create problems if they do not include all tasks of a job. Under ADA, an employer's definition of the essential functions will not, by itself, be sufficient to determine the outcome.

But if a written job description does not include a task, it will be difficult, if not impossible, to have that task included later (in court) as an essential function. In general, if an employer has written job descriptions now, they should be reviewed closely and revised. If an employer does not have them, they should probably not be adopted just because of ADA. Although there are many good management reasons for written job descriptions, this act should not discourage an employer from adopting them.

Undue Hardship

An employer can defend a charge on the grounds that the proposed accommodation would create an undue hardship.' There is no precise definition of that term. What is an undue hardship for a small company might not be for General Motors. The regulations specify that the term take into consideration the financial realities" of the employer as well as any physical limitations. Thus, an accommodation that would be too disruptive or would fundamentally alter the nature or operation of the business' would create an undue hardship.

The regulations give the example of an individual with a visual impairment applying for a job as a waiter in a dimly lit nightclub. Turning up the light level for him would create an undue hardship because it would fundamentally alter the nature of the business by destroying the ambience" of the nightclub.

Direct Threat

An employer can also decline to make an accommodation if it would result in a direct threat to the safety or health of the individual or others. There are four factors to be considered: the duration of the risk; the nature and severity of potential harm; the likelihood of potential harm; and the imminence of potential harm. The analysis must be based on objective, factual evidence not subjective perceptions, irrational fears or patronizing assumptions. The assessment should involve third-party medical or engineering analysis. For instance, general fears regarding risks in the event of emergency evacuation would not be sufficient.

The reasonable accommodations requirement under ADA creates issues that do not arise under other discrimination acts. Further, the "essential functions" test can require an employer to adjust duties, job requirements and, perhaps, even equipment and the work environment. It is these requirements, more than others, that sets ADA apart from other laws.