Title I Technical Assistance Manual

3. A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.

For example, A company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in the Japanese language. Fluent communication in the Japanese language is an essential function of the job.

The regulation also lists several types of evidence to be considered in determining whether a function is essential. This list is not all-inclusive, and factors not on the list may be equally important as evidence. Evidence to be considered includes:

a. The employer's judgment

An employer's judgment as to which functions are essential is important evidence. However, the legislative history of the ADA indicates that Congress did not intend that this should be the only evidence, or that it should be the prevailing evidence. Rather, the employer's judgment is a factor to be considered along with other relevant evidence.

However, the consideration of various kinds of evidence to determine which functions are essential does not mean that an employer will be second-guessed on production standards, setting the quality or quantity of work that must be performed by a person holding a job, or be required to set lower standards for the job.

For example: If an employer requires its typists to be able to accurately type 75 words per minute, the employer is not required to show that such speed and accuracy are "essential" to a job or that less accuracy or speed would not be adequate. Similarly, if a hotel requires its housekeepers to thoroughly clean 16 rooms per day, it does not have to justify this standard as "essential." However, in each case, if a person with a disability is disqualified by such a standard, the employer should be prepared to show that it does in fact require employees to perform at this level, that these are not merely paper requirements and that the standard was not established for a discriminatory reason.

b. A written job description prepared before advertising or interviewing applicants for a job

The ADA does not require an employer to develop or maintain job descriptions. A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence.

A written job description may state that an employee performs a certain essential function. The job description will be evidence that the function is essential, but if individuals currently performing the job do not in fact perform this function, or perform it very infrequently, a review of the actual work performed will be more relevant evidence than the job description.

If an employer uses written job descriptions, the ADA does not require that they be limited to a description of essential functions or that "essential functions" be identified. However, if an employer wishes to use a job description as evidence of essential functions, it should in some way identify those functions that the employer believes to be important in accomplishing the purpose of the job.

If an employer uses written job descriptions, they should be reviewed to be sure that they accurately reflect the actual functions of the current job. Job descriptions written years ago frequently are inaccurate.

For example: A written job description may state that an employee reads temperature and pressure gauges and adjusts machine controls to reflect these readings. The job description will be evidence that these functions are essential. However, if this job description is not up-to-date, and in fact temperature and pressure are now determined automatically, the machine is controlled by a computer and the current employee does not perform the stated functions or does so very infrequently, a review of actual work performed will be more relevant evidence of what the job requires.

In identifying an essential function to determine if an individual with a disability is qualified, the employer should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed. An individual with a disability may be qualified to perform the function if an accommodation would enable this person to perform the job in a different way, and the accommodation does not impose an undue hardship. Although it may be essential that a function be performed, frequently it is not essential that it be performed in a particular way.

For example: In a job requiring use of a computer, the essential function is the ability to access, input, and retrieve information from the computer. It is not "essential" that a person in this job enter information manually, or visually read the information on the computer screen. Adaptive devices or computer software can enable a person without arms or a person with impaired vision to perform the essential functions of the job.

Similarly, an essential function of a job on a loading dock may be to move heavy packages from the dock to a storage room, rather than to lift and carry packages from the dock to the storage room.

(See also discussion of Job Analysis and Essential Functions of a Job, below).

If the employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job; a job description prepared after an alleged discriminatory action will not be considered as evidence.

c. The amount of time spent performing the function

For example: If an employee spends most of the time or a majority of the time operating one machine, this would be evidence that operating this machine was an essential function.

d. The consequences of not requiring a person in this job to perform a function

Sometimes a function that is performed infrequently may be essential because there will be serious consequences if it is not performed.

For example:

• An airline pilot spends only a few minutes of a flight landing a plane, but landing the plane is an essential function because of the very serious consequences if the pilot could not perform this function.

• A firefighter may only occasionallyhave to carry a heavy person from a burning building, but being able to perform this function would be essential to the firefighter's job.

• A clerical worker may spend only a few minutes a day answering the telephones, but this could be an essential function if no one else is available to answer the phones at that time, and business calls would go unanswered.

e. The terms of a collective bargaining agreement

Where a collective bargaining agreement lists duties to be performed in particular jobs, the terms of the agreement may provide evidence of essential functions. However, like a position description, the agreement would be considered along with other evidence, such as the actual duties performed by people in these jobs.

f. Work experience of people who have performed a job in the past and work experience of people who currently perform similar jobs

The work experience of previous employees in a job and the experience of current employees in similar jobs provide pragmatic evidence of actual duties performed. The employer should consult such employees and observe their work operations to identify essential job functions, since the tasks actually performed provide significant evidence of these functions.

g. Other relevant factors

The nature of the work operation and the employer's organizational structure may be factors in determining whether a function is essential.

For example:

• A particular manufacturing facility receives large orders for its product intermittently. These orders must be filled under very tight deadlines. To meet these deadlines, it is necessary that each production worker be able to perform a variety of different tasks with different requirements. All of these tasks are essential functions for a production worker at that facility. However, another facility that receives orders on a continuous basis finds it most efficient to organize an assembly line process, in which each production worker repeatedly performs one major task. At this facility, this single task may be the only essential function of the production worker's job.

• An employer may structure production operations to be carried out by a "team" of workers. Each worker performs a different function, but every worker is required, on a rotating basis, to perform each different function. In this situation, all the functions may be considered to be essential for the job, rather than the function that any one worker performs at a particular time.