Did you know that the Super Bowl MVP, Philadelphia Eagles (backup) Quarterback Nick Foles, has more playoff wins in the last three months (3) than the Dallas Cowboys have in the past twenty years (2)?
But, I didn’t come here to make fun of the Dallas Cowboys.
Ok, maybe a little.
Rather, this is a blog about employment law. And, today, I want to talk about the Americans with Disabilities Act. Specifically, I’m going to focus on essential job functions.
For example, although I haven’t seen it myself, I assume that somewhere on a current Dallas Cowboys job description in the list of essential job functions, you won’t find anything about required attendance in January or February.
Indeed, some things we’ve just come to expect.
Dallas is to losing as Pharmacist is to flu shot
If you were to review a job description of a pharmacist, you’d assume that this person must administer flu shots. Sure enough, I blogged about this before.
Yet, here we are again with another opinion I read yesterday about a pharmacist who claims that his employer failed to accommodate his trypanophobia, i.e., fear of needles.
This time, the plaintiff-employee argued that the defendant-employer initially gave him a letter stating that administering immunizations was not an “essential” function of his job.
Now, it is possible for an employer to essentially ratify not having to perform a function that you and I would assume is essential, For example in this Third Circuit decision, the court concluded that there was a fact-issue about whether the plaintiff, a cable installer, would have to climb utility poles. That’s because there was evidence that the defendant had given the plaintiff a pass on climbing for several years.
Except, in the situation involving the pharmacist, the employer specifically wrote in the letter to the employee that “the company reserves the right to revisit this approval at any time to review the effectiveness of the accommodation, its impact on business operations and co-workers, and/or if there is a material change in either your situation or in the business needs of the facility.”
Plus, the defendant presented a copy of the plaintiff’s job description to the court. Among other things, it read, “An individual must be able to successfully perform the essential functions of this position with or without a reasonable accommodation.” Listed as an essential function is: “Provides comprehensive patient care to customers by . . . administering immunizations[.]”
And because the plaintiff could not perform this essential job function, he was not a “qualified individual.” Therefore, his disability discrimination claim failed.
Three takeaways for employers.
- Eagles > Cowboys
- Whoever else plays the Cowboys > Cowboys
- You control what job functions are essential. How do you manage this? Head back to Monday’s blog post for a few tips.