Ensuring Your Job Descriptions Keep You Out of the Fire
We know that a job description is required for purposes of a workers’ compensation claim. While the amount of necessary detail is not specified in KRS 342, it is best to outline as much about a plaintiff’s job as possible. This helps attorneys, evaluating doctors and judges more accurately determine the benefits a claimant should receive based on his or her ability to return to a job, and avoids any unwelcome surprises come time for the hearing (for example: “well, that task wasn’t part of my formal job description, but I had to do it all the time…”)
A detailed description is essential in more than just the world of workers’ compensation. For that same claimant who strained his back and is off on TTD, the level of specificity in a job description can determine whether you will be required to provide an accommodation under the Americans with Disabilities Act (ADA) once that worker is released, or if you may advise that there is no position available to that worker.
Though a description of a position can tell an employee what is generally expected of him or her, the requirements of the job get down to brass tacks. A company of any significant size should have thoughtfully drafted, written job descriptions that are used in the hiring process, as well as being distributed to employees when they start work, as well as if/when the requirements change. But a good description doesn’t address only the physical requirements (though these are very important in the case of injuries). Elements such as education, computer proficiency, communication skills, etc. are all part of defining a worker’s responsibilities.What kind of hours is the person expected to work? Are they eligible for overtime?
Naturally, though, the physical aspects are always crucial. How much must they sit/stand/walk? Is there a lot of driving involved? If so, estimates should be defined. What about manual physical requirements such as lifting, carrying, handling, etc.? Even in sedentary jobs, such specificity should not be overlooked simply because there is no actual weight involved. Despite sitting most of the day, is it essential that the person be able to use both hands? Is it necessary that they type a certain number of words per minutes? That they be able to bend a certain angle in order to open drawers and file papers?
Under the ADA, any employer with 15 or more employees must provide a “reasonable accommodation” to qualified individuals with disabilities, as long as doing so does not result in “undue hardship” to the employer. In some cases, the requested accommodation becomes an undue hardship if granting the accommodation would preclude the employee from performing “essential” functions of the job. It is the responsibility of the employer to prove a job function is “essential”, but it is the responsibility of the employee to show they remain “qualified” to do the job even with the accommodation. The written job description is vital to both of these determinations. Without one, how do we know if a 15-pound lifting restriction would prevent the worker from performing an essential function? Or if the ability to sit for 6 hours per day will literally “get the job done”? Likewise, with no description we do not know for sure which functions are “essential” in the first place, and which are not.
What do you do if your job descriptions appear to be lacking? Update them immediately! It is good practice to review job descriptions and requirements yearly to ensure that the written version matches the actual position as it exists at the time of review. It is important not only to add functions to the description that have developed in the last year, but also to remove or otherwise note functions that are not “essential.” A recent 6th Circuit case places this into perspective.
In Wardia v. Department of Juvenile Justice, No. 12-5337 (6th Cir. Jan. 3, 2013), the plaintiff was a youth worker at a juvenile detention center in Kentucky. His primary job function was to “supervise and monitor activities of juveniles committed to the Department of Juvenile Justice.” Another job requirement was that he must be able to perform physical restraints when necessary. Wardia had a neck injury that made it impossible for him to fulfill this particular function. He was accommodated temporarily in a light duty position, but after surgery his injury became permanent and he could not return to his full duty position. Wardia requested an accommodation by asking that he permanently be assigned to his light duty job. The employer declined to make this accommodation. Wardia sued the employer for failure to accommodate his disability in violation of the ADA. The district court granted summary judgment in favor of the employer, finding the ability to perform physical restraints was an essential job function and, therefore, the ADA did not require it to reassign Wardia to light duty job on a permanent basis as an accommodation.
Wardia appealed to the 6th Circuit, making two arguments. First, he argued that the physical restraint portion of his job is too rare to be considered an “essential” job function. He claimed this aspect was “optional” because some employees were relieved from performing them. Second, he argued that the employer could have accommodated his disability by having a coworker perform restraints whenever the need arose, or by reassigning him permanently as he had asked. The Court rejected both arguments. With specific regard to the rarely performed but “essential” job function, the 6th Circuit ruled that the rarity with which a job function is performed does not render it non-essential under the ADA. Most employees of the detention center, including ones in Wardia’s position, must be able to perform this task for obvious safety reasons; though the hope is that this task will not need to be frequently performed, the reality is that it might be, and that is enough.
While in Wardia it is unlikely that the physical restraint provision would have been removed from that particular job description, there could easily arise a situation where an outdated job description is used as the yardstick by which a disabled worker’s request for an accommodation is measured. Conversely, if a task is important but it is not listed because it is not a “daily” function, that can also be detrimental to the employer in proving that an “essential” function will go unperformed. Either way, if the job description is inaccurate in the worker’s favor, the employer could be stuck accommodating a request that doesn’t allow the worker to fully perform the job, simply because the job description did not sufficiently outline all that is truly required.
In sum, clarity and detail are the hallmarks of a great job description. If you have doubts as to whether yours are ADA-compliant, have them reviewed by an attorney. While all possible eventualities can never be predicted, this is the best way to ensure that your descriptions are as precise as possible.