Two important announcements and an ADA lesson “straight out of the school of hard knocks.”


Image Credit: (

Here are the important announcements:

First, if you subscribe to this blog to receive daily emails, you must update your subscription preferences

You may have heard about the new General Data Protection Regulation (“GDPR”), that comes into effect May 25, 2018. To help comply with GDPR consent requirements, email subscribers should re-confirm that they want to receive content from The Employer Handbook.

Email subscribers should have received a separate email blast on Saturday, May 5, at around 10 am EDT. If you haven’t done so already, please open that email. In that email, you will find a link to update your blog subscription preferences. Please click the link and update your preferences. It will take you all of 10 seconds.

Alternatively, if you received today’s blog post in your email — this one — scroll down to the bottom of the email where you should click on “update your preferences.” Then update your email subscription preferences. It’ll take you all of 5 seconds.

Hey, I didn’t make the rules. But, I aim to follow them.

Second, I’m sorry and thank you.

I apologize for messing up Friday’s post on the new New Jersey Paid Sick Leave Law. Number 7 in The Employer Handbook disclaimer confirms that, from time to time, I make errors. Yes, folks, just like Ivan Drago, I’m human.

In Friday’s post, I linked to a prior draft of New Jersey’s Paid Sick Leave Law and included some of that language in the blog post.


But, I love my readers.

A big thank you to the readers that politely pointed out my faux pas. Each of you deserves a big raise! I have since fixed the post, and we are good to go.

Ok, Eric. What’s this about the Americans with Disabilities Act and “hard knocks”?

Sorry folks. Not that Hard Knocks?

However, grab your sunscreen because we are going down to Puerto Rico to address this recent ADA decision, which involves the ability to work rotating shifts as an essential job function. Boy, the last half of that prior sentence really took the fun out of it, didn’t it. But, since you’ve made it this far through the post — and you’ve updated your email subscription preferences, right? — let’s soldier on.

The case, which was actually on appeal to the First Circuit, so we’re not even in Puerto Rico anymore, involves an employee who developed from post-traumatic stress disorder and major depression disorder after being robbed at gunpoint during work.

Subsequently, the employee requested two things from his employer: (1) a fixed work schedule (rather than a rotating work schedule); and (2) a transfer to another store in an area which was less prone to crime. The employer initially agreed to the fixed work schedule, but later changed its mind. Subsequently, the employee resigned.

And became a plaintiff in an ADA lawsuit.

The lower court concluded that the plaintiff had a “disability” under the ADA, but not a “qualified individual” because he could not perform the essential functions of his job with or without accommodation.

On appeal, the First Circuit essentially took for granted that the plaintiff had an ADA disability and also focused on the qualified-individual prong. This is where we get into those hard knocks:

Today’s opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it’s just not on his side.

[B]eing able to work rotating shifts was an essential function of the assistant manager job….[I]t was uncontested that from [the employer’s] perspective, the ability to work rotating shifts was essential. Indeed, [the employer] explained that rotating shifts were necessary for the equal distribution of work among the managerial staff and [the employee] conceded this point in his deposition….Moreover,…the job application [the plaintiff] filled out and signed when he was hired made clear that all [of the employer’s] managerial employees had to be able to work different shifts in different restaurants. And it pointed to a newspaper advertisement for the job that listed the need to work rotating shifts as a requirement. 

For these reasons, the Court concluded that:

  1. Working rotating shifts was an essential function of the plaintiff’s job;
  2. Plaintiff could not perform the essential functions of his job with or without accommodation;
  3. Plaintiff was not a “qualified individual” under the ADA; and
  4. Therefore, plaintiff loses his ADA failure-to-accommodate claim.

Three takeaways for employers:

  1. Companies establish what job functions are essential.
  2. How are essential functions determined? Good question. Here’s the answer. Check this out as well.
  3. Once you establish what functions are essential, communicate these essential job functions to your employees. Consider having each employee sign for his or her job description at regular intervals (e.g., annual performance review) and to acknowledge the essential job functions.

And since we’re at the end of the blog post…

Scroll down a bit and update your email subscription preferences. Thanks!

“Doing What’s Right – Not Just What’s Legal”
Contact Information