Category: Human Resources

As a Talent Management Consultant I work with companies across many industries to help them understand how the Americans with Disabilities Act (ADA) impacts them. One key component of this is helping organizations create or revise their job descriptions and understand what the essential functions of the roles in their organization are. Often I find that employers don’t connect their job descriptions to their need to comply with ADA and they don’t understand how determining the essential functions of a position plays into that compliance. The failure to understand how to evaluate the essential functions of a role and how to determine accommodations under ADA can be costly, so it’s imperative for organizations to understand ADA, how to evaluate jobs within their organization, and how the two things tie together when the need to accommodate a candidate or employee arises. 

When dealing with ADA accommodations, employers most often find themselves challenged with how to accommodate the physical job requirements that are necessary to complete those essential functions of the role. Every job has physical requirements. When we think of physical job requirements, we commonly think of physical activities such as sitting, standing and lifting. But physical requirements often go well beyond that. Some jobs have much more strenuous physical requirements and employers need to be able to ensure that they are hiring individuals physically capable of performing those physical requirements. In order to do this, employers first need to understand what physical capabilities are necessary for the completion of that role. 

There are a number of ways that an employer can evaluate a role to understand what physical requirements are needed in order for an employee to be able to perform the functions of that role. A multi-pronged approach is recommended in order to obtain the most comprehensive data. 

1. Start with conducting a job analysis. A job analysis includes interviewing incumbents in the role to determine the functions of that role. Ask questions regarding what tasks they complete on a daily and weekly basis and what percentage of their time they spend on each task or category of tasks. 
2. Observe them in their work. Once you have met with the incumbents in the role, observe them actively engaged in their work. Select a few incumbents and spend time observing them performing the functions of the role. Ask follow up questions about the tasks you see them performing. 
3. Compare your results to the current job description. Once you have completed the job interviews and observations, compare your results to the current job description and make updates as necessary, paying close attention to the physical requirements needed to complete the required duties of the role.
4. Conduct research on the role and similar roles. In addition to conducting a job analysis, there are resources available to assist organizations in developing well-crafted and compliant job descriptions, such as the Bureau of Labor Statistics (BLS) job descriptions. By reviewing similar roles, it can help you calibrate on your own job descriptions and make sure that you didn’t miss anything in the job analysis phase that you may need to follow up on. 
5. Additional considerations. Once you’ve completed the job analysis and your research, there may be additional considerations needed, such as determining if certain physical fitness standards are necessary for the position such as weight, height, or lifting requirements. IF a position requires extreme or repetitive physical exertion, you may consider if a pre-employment medical exam or physical abilities test (PAT) is appropriate for the position. When considering the use of a medical exam or PAT, you must be careful to ensure the exam is appropriate to ensure that the employee physically healthy to perform the essential functions of the role but that the medical information obtained does not provide you with information that would allow you to potentially discriminate against the employee in violation of any state or federal laws, such as the Genetic Information Nondiscrimination Act of 2008 or GINA. PATs can be a great way for an employer to evaluate a candidate’s ability to perform physical activities that mimic the physical requirements of the job. Keep in mind not all PATs are an exact demonstration of the work performed, but may be an assessment designed to evaluate physical attributes that roles require. An example would be the type of PAT that candidates are often required to complete for law enforcement roles, where they are required to perform a series of physical tests such as running a timed mile, push-ups, sit-ups, and other exercises that are timed. It’s important to remember that when using PATs in the hiring decision, the tests must be valid and reliable. 

Once you have conducted the job analysis, research, and reviewed additional considerations, you must determine if the functions you noted are essential to that role. Determining what is an essential functions of a position is not always an easy task. There are a number of factors that must be considered when determining if a functions is essential to a role. These include, but are not limited to, how much the position exists to perform the function, how often the function must be performed, how many employees are available or required to perform the functions, and how specialized the function is. Take for example the role of a rubber mold operator who is required to be able to lift up to 100 pounds. The operator is lifting 100 pound sheets of rubber onto a mold press and shifting that sheet around on that press multiple times a day throughout their shift. This is the sole purpose of this position, the function is specialized to that position, and therefore the function is essential. Now consider the role of a firefighter. While firefighters do not run into burning buildings every day and carry individuals out of buildings every day, the position exists for that very purpose and all firefighters must be able to perform those tasks. They receive specialized training in order to be able to safely perform the functions of the job such as entering that burning building, running up and down flights of stairs with heavy gear on, and carry individuals to safety. These functions are essential even though they are not performed on a regular basis. 

By evaluating the positions within your organization and understanding what the essential functions of each role are, you are better able to evaluate ADA accommodations when they arise and make determinations on whether accommodations can be made to allow a qualified individual to perform the essential functions of their role. 

Links to Articles:

https://content.govdelivery.com/accounts/USEEOC/bulletins/350871c/

https://www.littler.com/publication-press/publication/updated-fcra-summary-consumer-rights-released-mandatory-compliance?utm_source=vuture&utm_medium=email&utm_campaign=news%20%26%20analysis%20march%202023

Late last year President Biden signed the Speak Out Act into law. This law forbids employers from
including sexual harassment and sexual abuse claims in Non-Disclosure Agreements. What many may
not know is that the Speak Out bill that passed in Congress was a very different version than what was
submitted originally.

The original Speak Out bill mirrored the Silenced No More laws that are currently in place in fourteen
(14) states, with two more considering similar bills. So why is this important information for companies
to know? Take the Washington Silence No More Act as an example, it includes claims of discrimination,
harassment, and wage and hour violations. Washington’s law protects employee’s rights to
communicate these concerns or complaints based on their “reasonable belief” that there is a violation
by the employer. First, the level of “reasonable belief” is not well defined and is a very subjective
measure. Second, it potentially closes the door for employers to settle situations in-house when possible
if employees feel that this law has fully opened the door for litigation. The laws in other states are very
similar and some were based off Washington’s Act.

The original Speak Out bill was similar as well, including language that covered discrimination against
other Title VII characteristics including race, national origin, and age. While the bill was stripped back to
only cover sexual harassment and sexual assault, Biden has stated that he will push for these additional
protections. So, what does this really mean for employers? You need to review your Non-Disclosure
Agreements to ensure that they no longer include sexual harassment and/or sexual abuse. But in
addition to that, you need to consider what other steps you may need to take if a more encompassing
law is passed. Keep in mind the Speak Out Act only prohibits pre-incident agreements, meaning NDA’s or
similar agreements. It does not prohibit an employer from offering, or an employee from accepting, a
post-incident agreement of confidentiality.