Most of the time when a client asks whether it can terminate someone for poor performance or attendance issues the conversation turns to whether the employee in question could be covered by the Americans with Disabilities Act – after all, it is painfully easy for employees to fall under the uber-expanded definition of disabled. And that is when I ask my clients for a copy of that employee’s essential functions of the job.
Inevitably, most clients do not have the essential job functions reduced to writing. Instead, they tell me things like these:
- She needs to type faster than she is
- He walks too slow
- She misses too much work
- I don’t think he is strong enough
- He falls asleep at his desk
But they don’t tell me whether typing, walking, attendance, strength, or staying awake is an essential function of the job for which those employees were hired. And before you assume that staying awake is an essential function of the job – a court determined that being awake was not an essential function of an employee who worked the graveyard shift at a call center because that person woke up when the phone rang, answered the phone, talked to the caller, and then went back sleep while waiting for the next call.
Much to the dismay of my clients, we always spend time figuring out whether an employee’s chronic performance issue could be because of a disability. And part of that process is to determine whether the employee could perform the essential functions of her job with or without accommodation. But before we do that, we have to figure out what the essential functions of her job are.
To answer my question in the subject line, it is the employer who determines the essential functions of the job. But that doesn’t mean employees cannot be a part of the decision making process. Oftentimes when dealing with a seemingly litigious employee, my advice is for the company to create a list of that job’s essential functions then ask the employee if there is anything she would add to the list. After a comprehensive list is created, then discuss with the employee whether she can think of any reasonable accommodations that would enable her to perform the essential job functions at a satisfactory level.
This interactive process serves two purposes: First, it is better to figure out if a reasonable accommodation exists before you terminate the employee and leave whether something is a reasonable accommodation up to the court system to decide. Second, engaging the employee in the process helps her realize that she is valued but no reasonable accommodation exists to allow her to perform the essential functions of the job and she will likely resign or accept her termination more amicably.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. Austin Legal’s Concierge Legal Services program is relied upon by companies to remain compliant and competitive. If you have employees, you need Concierge Legal Services. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.