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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Do Job Duties Constitute Essential Functions Of A Job Position When An Employer Does Not Treat Them As Essential?

Ada in the form of binary code

Having fought for the rights of employees for almost twenty years, our Alachua County, Florida employment discrimination attorneys have learned that employers often believe they can nullify the protections afforded by the Americans with Disabilities Act (ADA) by discharging employees who have a disability by claiming that they cannot perform the essential functions of their job position. Employers are able to employ this tactic based on language in the ADA regarding what an employee must establish in order to be protected from disability discrimination under the ADA.

Under the ADA, employers are forbidden from discriminating against a “qualified individual” because of his or her disability. The ADA defines a “qualified individual” as “an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position.” Under the ADA, the essential functions of an employment position are the fundamental job duties. This language in the ADA means that if an employee is unable to perform the essential functions of the employment position, with or without a reasonable accommodation, then he or she is not a “qualified individual” with a disability and is not protected from disability discrimination by the ADA.

Recognizing that they have almost total control in defining what constitutes the essential functions of an employment position, employers exploit that autonomy by declaring that an employee’s physical limitations prevent him or her from performing job duties that constitute essential functions of the position. In defining the essential functions of the employment position to fit the circumstances at issue, employers understand that they can terminate the employee without violating the ADA because he or she is not a “qualified individual” with a disability and is not protected by the ADA. In other words, it is not unlawful under the ADA to fire an employee with a disability if he or she cannot perform the essential functions of the position, with or without a reasonable accommodation.

Injured Employee On Work Restrictions

The recent decision by the U.S. Sixth Circuit Court of Appeals in Gunter v. Bemis Company, Inc., No. 17-6144 (Oct. 16, 2018) is instructive in showing that what constitutes the essential functions of an employment position is not determined solely by what an employer or a written job description says, but, rather, by an examination as to whether the employer and employees treat the job duties as essential. In that case, Tony Gunter (Gunter) sued his former employer, Bemis Company, Inc. (Bemis), for disability discrimination under the ADA. Gunter claimed that Bemis fired him because of his disability in violation of the ADA.

In January 2013, Gunter injured his right shoulder while working as a press assistant for Bemis. Press assistant are responsible for ensuring that Bemis’ printing presses operate properly. Gunter continued to work while going to physical therapy for six months, but his shoulder did not improve. Bemis referred Gunter to a physician, Dr. Garside, who performed surgery on his shoulder in August 2013. Gunter returned to light duty a moth or two later. A few months after his return to work, in December 2013, Gunter returned to his job as press assistant with temporary restrictions of no reaching with his right arm and no performing overhead work.

In May 2014, Bemis required Gunter to take a functional capacity evaluation as part of processing his workers’ compensation claim. The evaluator determined that Gunter could perform jobs with light physical demands. Based on the requirements of Bemis’ job description, however, Gunter needed to be able to do jobs with medium physical demands. In particular, as a press assistant, Gunter was required to load raw materials and gears onto the press and fill the press with ink. He was also required to take the printed material off the press and solve mechanical problems by “re-webbing” the press if material became jammed. Bemis allowed Gunter to continue working with a temporary no-overhead restriction while Dr. Garside reviewed the report.

In June 2014, Dr. Garside authorized Gunter to return to regular duty with the following restrictions: Gunter could not work overhead with his right arm; could lift up to 40 pounds occasionally and 20 pounds frequently from the floor to his waist; could lift up to 20 pounds occasionally from his waist to his chest; could not lift overhead; and could occasionally outstretch his right arm. On July 2, 2014, Bemis placed Gunter on paid leave on grounds that it could no longer accommodate his restrictions. On November 3, 2014, Bemis fired Gunter. 

Company Did Not Treat Job Duties As Essential Function of Position

Following a trial, the jury returned a verdict in favor of Gunter and found that Bemis violated the ADA by firing Gunter because of his disability. On appeal, Bemis argued that the jury’s verdict must be vacated and that it was entitled to judgment as a matter of law because Gunter could not perform the essential functions of a press assistant, including lifting 45 pounds and reaching 24 inches, and therefore was not protected from disability discrimination by the ADA. The Sixth Circuit rejected Bemis’ argument and upheld the jury’s verdict in favor of Gunter.

The Sixth Circuit found that the evidence established that Gunter could perform the essential functions of the job. The appellate court pointed out that although Gunter could only lift 40 pounds occasionally, “Bemis encourages employees not to lift anything over 40 pounds by themselves.” The court of appeals also observed that Bemis has lifting equipment that employees can use to lift many objects, even if an object weighs as little as 20 pounds. Although press assistants must lift buckets that weigh 20 to 30 pounds and gears that weigh between 14 and 40 pounds, “employees can ask their co-workers do help lift the heavier gears and often do.” “In fact,” the appellate court noted, “some smaller employees had asked Gunter for help in carrying heavier equipment, including the gears.” Moreover, “employees also use ladders for equipment that needs to be lifted higher, establishing an option for workers, like Gunter, who could not lift over their waist.”

The Sixth Circuit further explained that “although an employer’s job description provides evidence of a job’s essential functions, it is not dispositive.” Although Bemis may have “carefully composed the press assistant job description,” the appellate court found that the evidence established that “these requirements were not essential, and the company and other employees did not treat them as essential.” The court of appeals also rejected Bemis’ argument that Gunter could not establish his ability to perform the essential functions of the job based on the option that other employees could help lift heavy equipment. Although employers are not required to “accommodate individuals by shifting an essential job function onto others,” the court of appeals observed, that principle only applies under circumstances where the “tasks amount to essential functions that a single employee must be able to handle.” That principle was inapplicable, the appellate court reasoned, because the evidence reflected that “press workers often ask for and receive help with certain tasks” and thus the tasks were not “an indispensable task for individual employees.” Based on the evidence, the Sixth Circuit concluded, Gunter could handle the fundamental duties of a press assistant even with his restrictions.

Free Consultation With Gainesville Employment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience litigating disability discrimination cases in federal and state court. If you have been the victim of disability discrimination or have questions about whether your physical limitations prevent you from performing the fundamental duties of a position, please contact our office for a free consultation with our Alachua County, Florida employment law attorneys. Our employee rights law firm takes disability discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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