Dive Brief:

• Being present to supervise can be an essential job function as defined by the Americans With Disabilities Act (ADA), the 9th U.S. Circuit Court of Appeals has ruled (Ogden v. Public Utility District No. 2 of Grant County, No. 16-35295, (9th Cir., May 16, 2018)).
• Joanne Ogden appealed a federal trial court’s grant of summary judgment for her employer on her ADA, Family Medical Leave Act (FMLA) and state law claims.
• The 9th Circuit affirmed the lower court’s decision, pointing out that "she was unable to perform an essential function of the ... position: regular attendance." It also noted that while the FMLA generally requires reinstatement, federal regulations don't require it if the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition.

Dive Insight:

In ADA suits, courts often have to decide what constitutes an essential job function, as the law sometimes requires that employers remove marginal function as an accommodation, but not essential functions. But the outcomes vary because of the fact-specific nature of the claims. Just this year, the 11th Circuit held that the ability to work a 12-hour shift was not an essential function of campus police officer job, but the 8th Circuit held that the ability to work overtime can be an ADA essential function for a delivery driver. The ability to work a rotating shift was deemed essential for a Burger King manager, the 1st Circuit held, and "physical presence" was not essential for an attorney who requested a temporary remote work arrangement, according to the 6th Circuit.

In deciding what constitutes an essential job function, courts often give deference to employers. This means that a written job description prepared before advertising or interviewing for a job that spells out what is essential and what is marginal is key, according to the U.S. Equal Employment Opportunity Commission (EEOC) document, The ADA: Your Responsibilities as an Employer. A written job description that employees have signed is especially important, as are regular reviews of job descriptions.

Other kinds of evidence that EEOC said it will consider include the actual work experience of present or past employees in the job; the time spent performing a function; the consequences of not requiring that an employee perform a function; and the terms of a collective bargaining agreement.

Employer policies can also be relevant, but only if they are enforced consistently — as the employer in the 6th Circuit case learned the hard way.