CyQuest Business Solutions, Inc.

Make sure job descriptions reflect reality

job descriptions reflect reality

by THE HR SPECIALIST: TEXAS EMPLOYMENT LAW on JANUARY 2, 2017 8:00AM
in 
CENTERPIECE,DISCRIMINATION AND HARASSMENT,HUMAN RESOURCES

Usually, courts rely on the job descriptions employers provide when deciding whether an ADA accommodation adequately helped a disabled employee perform the essential functions of a job. However, if an employee can show that the job description doesn’t accurately or completely describe the work she actually performs, the court may decide to take the employee’s word for what the job really involves.

That’s yet another reason you should regularly update job descriptions and get the employee’s sign off that the description really does reflect the job. Annual review time is a great opportunity to have that conversation.

Recent case: Beatrice, a nurse for Vicksburg Healthcare, tore her rotator cuff and had shoulder surgery to repair the injury. She took 12 weeks of FMLA leave to have the operation and recover afterward.

Shortly before her FMLA leave was to expire, she requested another two weeks of leave because she had not yet been cleared to resume her job. Beatrice’s supervisor refused to extend her leave.

Beatrice then prevailed upon her health care provider to provide a return-to-work certification. It came with the proviso that Beatrice could not lift, pull or push anything weighing more than 10 pounds. The certification said she should be allowed only light-duty work.

Beatrice’s supervisor refused to reinstate her and she was terminated for allegedly being unable to perform the essential functions of her job.

The next day, Beatrice applied for short-term disability benefits, claiming she was temporarily and totally disabled.

The EEOC sued Vicksburg Healthcare on Beatrice’s behalf. It argued that the employer never engaged in the interactive accommodations process.

Vicksburg Healthcare countered that Beatrice’s job description required her to lift, push and pull more than 10 pounds.

But the court said the EEOC had the right to challenge the job description. At trial, the EEOC will be able to present evidence that Beatrice’s job didn’t actually require pushing, pulling and lifting on a regular basis and that therefore she could have been accommodated. (EEOC v. Vicksburg Healthcare, No. 15-60764, 5th Cir., 2016)

Note: The court also nixed Vicksburg Healthcare’s argument that Beatrice couldn’t simultaneously apply for disability benefits as totally and temporarily disabled and at the same time claim she could have worked with a reasonable accommodation. The court said those two positions weren’t necessarily contradictory.

It is quite possible for someone to be unable to perform work unless their employer agreed to a reasonable accommodation to overcome limitations. In this case, that meant that Beatrice could argue both that she could have done her job if the employer had someone help her with any pushing or lifting and that without that help, she was totally unable to work.

Final note: Finally, remember that additional time off after the end of FMLA or other leave may itself be a reasonable accommodation. That’s true as long as the extra time off is for a set period of time and isn’t indefinite. That wasn’t an issue in this case, but it often can be. Always consider whether someone who can’t quite yet return might be able to with just a bit more time to fully heal and recover.