Wherein, I marvel at the majesty of #F8. And something about the Americans with Disabilities Act too.

Orange Lamborghini Gallardo LP560 fl

With over 24 hours to marinate, I think back on Super Bowl LI and I’m still amazed.

I mean, how good does The Fate of the Furious look! Pretty sure there was a submarine chasing an orange Lamborghini on a frozen tundra! Yeah, now I know what Charlie Sheen truly meant by “Winning!”

Look, my betting days (largely derivative of my Vegas card-counting past) are behind me. But, while I’m here to dispense non-legal employment-law advice — we’ll get to that in a sec — I can give you a little non-gambling wagering advice too. If I had a spare sawbuck, I’d plunk it down on a parlay of Jason Statham for Best Supporting Actor and The Rock/Vin Diesel (tie) splitting the Best Actor award at the 2018 Oscars. Just sayin’.

And, here you probably thought that your Respect Cup for me couldn’t runneth over.

Ok, time to talk employment law. Today, we’re going back to the Americans with Disabilities Act to focus specifically on essential functions. And, even more so, whether an employer can change the essential functions of a job.

Well, can you?

Yep, you can change the essential functions of a job.

Consider the Tenth Circuit’s recent decision in Wickware v. Manville Co. (here).

In Wickware, the plaintiff, a 26-year employee, was a relief foreman for the defendant. Then, in 2011, along came a new plant manager who changed a work program that impacted the relief foreman position, specifically, some of the position’s essential job functions.

Well, as these ADA cases generally go, the plaintiff had a disability. The issue was whether he could continue to perform the essential functions after the plant manager tweaked the relief foreman position. The plaintiff appeared to argue that his prior pre-2011 service as relief foreman “grandfathered” him in as qualified to perform that position post-2011. The appellate court disagreed:

Although Mr. Wickware was assigned to the relief foreman position prior to the implementation of the 2011 Pay for Skills program, the essential function inquiry is not conducted as of an individual’s hire date. The statutory regime generally does not limit an employer’s ability to establish or change the content, nature, or functions of a job. We must look instead to whether a job function was essential at the time it was imposed on Mr. Wickware. Therefore, Mr. Wickware’s prior assignment to the relief foreman position is immaterial as to whether he could satisfy the essential functions of that position.

How you too can determine the essential functions of the job.

First, let’s understand what makes a job function essential. The ADA regulations say that a job function may be considered essential for any of several reasons. These include:

  • The reason the position exists is to perform that function;
  • The limited number of employees available among whom the performance of that job function can be distributed;
  • 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.

Here are some other essential-job-function hallmarks that courts will consider:

  • The employer’s judgment as to which functions are essential;
  • Written job descriptions prepared before advertising or interviewing applicants for the job;
  • The amount of time spent on the job performing the function;
  • The consequences of not requiring the incumbent to perform the function;
  • The terms of a collective bargaining agreement;
  • The work experience of past incumbents in the job; and
  • The current work experience of incumbents in similar jobs.

Regulations aside, here’s a pro-tip: once you define the essential functions of the job, make sure that you communicate them to the folks working those positions. I find that generally helps 😉

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