Compliance with the Americans with Disabilities Act of 1990 (ADA) is a fact of life for all covered employers. The law requires nothing less than a top to bottom review of a company’s employment policies and procedures. Human resource managers agree that the effort must be programmatic and coordinated company-wide. Where does the methodical road to ADA compliance begin? The core of every successful compliance program is a complete and updated written job description for every position maintained by an employer.
The Importance of Written Job Descriptions
Why are written job descriptions so critical? Interestingly, neither the ADA nor its implementing regulations administered by the Equal Employment Opportunity Commission (EEOC) require a covered employer to develop written job descriptions. Instead, the law prohibits a covered employer from discriminating in employment matters against a qualified individual with a disability because of the disability.
“Qualified individual with a disability” is a term of art under the ADA. It means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires to hold. Thus, only by identifying the essential functions of a given position will an employer know whether someone is a qualified individual with a disability and which reasonable accommodations might be appropriate.
What are Essential Functions?
The ADA itself does not define the term “essential functions.” However, the ADA regulations clarify that a job function may be considered essential for any of several reasons, including:
Because the reason the position exists is to perform that function;
Because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
The ADA recognizes that the employer is usually in the best position to evaluate the essential functions of a job. The regulations specifically provide that the employer’s judgment and written job descriptions prepared before advertising or interviewing applicants for the job are evidence of whether a particular function is essential. Note that the employer’s judgment is not conclusive on this issue; it is evidence. The EEOC in an enforcement action, or a court in a discrimination action, will carefully review the reasonableness of the employer’s judgment. The employer will want to demonstrate its good faith efforts to examine and update its employee practices in light of the ADA.
Beef Up Your ADA Compliance Program
How can an employer best prepare its ADA compliance program for this scrutiny? Consider the following steps and questions when developing your company’s job descriptions:
1. Designate one person or a group of persons to coordinate and oversee the drafting process. Authority should be centralized to ensure consistent policies and their objective application throughout the organization. Consider including input from employees at all levels. Front line employees generally know their jobs and their insights should be tapped my management.
2. Define the purpose of the job. That is, how does it contribute toward accomplishment of the organization’s overall objective?
3. Identify the functions which actually constitute the job. Unnecessary or incidental activities are not “essential” functions.
4. What is the relationship between the functions of the job? Should performance of the functions follow a particular sequence? If so, why?
5. Describe the physical qualifications of the job. Will the employee be required to lift or carry heavy objects, climb, kneel, run, etc.? Be specific. A videotape of the job’s physical requirements might be helpful in this regard.
6. Describe the mental or educational requirements for the job. Are advanced degrees or special licenses required? How much training will the employer provide?
7. How much time is spent performing each particular function and how often are they performed? What happens if a function is not completed on time?
8. Does an essential function of another job depend upon the performance of a function of this job?
9. How many employees perform the job function? Can the performance of that job function be distributed among any other employees?
10. Describe the physical setting of the job. Where are the essential functions of the job performed? Is the employee typically subjected to heat, cold, dampness, noise, etc.? Describe the social setting of the job. Will the employee work alone or in a group? What level of supervision is normally applied to the job? Is telecommuting by the employee and option?
11. A proposed job description should be reviewed with supervisors and employees. Does the description accurately reflect the job’s essential functions and employee qualifications?
12. Document the process of preparing the job descriptions. Who served on the drafting committee and how were the job descriptions evaluated?
13. Review the job descriptions and update as necessary on at least an annual basis. Outdated job descriptions are virtually worthless.
Organization of your company’s job descriptions is a virtue which pays rich dividends. You will find it easier to develop objective job-related interview questions (some employers attach written job descriptions to their application forms). Thorough and current job descriptions also serve as objective benchmarks for performance appraisals. Most importantly to ADA compliance, you will be able to determine whether a disabled person is qualified for a particular job and what accommodations might assist the disabled person to perform the job.