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Wednesday, April 10, 2013

Rarely Performed Job can be Essential

By: Tommy Eden, Constangy, Brooks & Smith, LLP

Gary Cremeens was a fire investigator for the City of Montgomery who, because of his disability, was unable to engage in firefighting. Fire investigators investigate fires involving loss of life, arson, gather physical evidence, interview witnesses, interrogate suspects, testify in court and make arrest. Fire investigators rarely engage in actual firefighting activities, but the City classified it an essential job duty. When Cremeens could not pass his fitness for duty evaluation because of his disability he was let go because he could not perform the “essential function” of firefighting.

In Cremeens v. The City of Montgomery, Alabama, (11th Cir. May 31, 2011), the Court tackled the question of how frequently an employee is required to perform such duties in order for them to be deemed “essential.” The ADA’s implementing regulations provides a list of factors whether a particular function is essential including: (1) the employer’s judgment as to which functions are essential; (2) the written job descriptions of the position; (3) the amount of time spent on the job performing the function; and (4) the consequences of not requiring the individual to perform the function. The City satisfied the 1st, 2nd and 4th factor test with a written job description and evidence that the firefighting function is essential whenever the need arises, and the consequences of not requiring a Fire Investigator to engage in fire suppression activities when necessary could be dire. Accordingly, the Court held that Cremeens was not a “qualified individual” within the meaning of the ADA, and affirmed the grant of summary judgment in favor of the City.

Last week in Knutson v. Schwan's Home Service Inc. (8th Cir. April 3, 2013) the frozen food delivery company terminated the employment of Jeff Knuston after an eye injury meant he was no longer DOT medically qualified to drive a truck. Knuston had successfully run his Minnesota delivery depot without driving a truck for nine months after the eye injury. But the appeals court said that the written job description and other key indicator showed that driving was a fundamental part of the job for Schwan manager even if he rarely did it. The court also noted that Schwan had done enough to accommodate the manager by giving him 30 days to find a job within the company that didn’t require DOT driving certification, something he eventually was unable to do.

Common Sense Counsel: The Cremeens and Knuston cases establish that a job function need not be performed frequently in order to be deemed “essential.” The ADA Amendments Act of 2008 (ADAA) makes it significantly more difficult for employers to defend ADA cases. These recent ruling by the 11th and 8th Circuit that even infrequent activities may constitute essential functions of an employee’s position makes it clear that employers still have powerful defenses available to them. Employers should include all of the essential functions of a position in an ADA compliant written job description.

Tommy Eden is an attorney with Constangy, Brooks & Smith, LLP, member of the ABA Section of Labor and Employment Law, East Alabama SHRM Board of Directors Tommy can be contacted at teden@constangy.com or 334-246-2901.