ADA Compliance with Compassion, Part 3: What is an Essential Job Function, Really?
By: Chisa Chervenick
Welcome back to the 3rd article in our series on mental health, employment, and the ADA. If you’re just joining us, click the links at the bottom of this page to catch up on the previous articles in this series.
Spoon Theory
It’s officially May, which is Mental Health Awareness month. Before we jump into the nitty gritty of the ADA and essential job functions, I want to tell you about something called “spoon theory”. Confession time: your author is one of those one in five US adults who live with a mental health condition. Spoon theory is a disability metaphor used to explain the reduced amount of mental and physical energy available for basic living activities and productive tasks that results from many disabilities and chronic illnesses. It can be difficult to explain the personal experiences of living with an invisible illness to those of you who literally cannot relate - how could you when we’re talking about internal experiences and challenges?
Most of you go about your day expending physical and emotional energy without feeling that expenditure or giving any thought to the “cost” of those activities. You wake up, maybe go for a jog, take the dog for a walk, take a shower, wash your hair, brush your teeth, decide what to wear, get dressed, make coffee, respond to a few emails, then head into the office for a full day ahead. This is your routine. You wake up, and it’s just what you do. You probably aren’t consciously aware of the fact that every little step you take in the morning is an activity or decision- and activities and decisions require energy. Some require very little energy, like brushing your teeth. Others require a lot of energy, like running- but no worries, that energy will replenish itself after a quick shower. You’ll move along with your day, expending energy and replenishing energy, most of the time without realizing it.
In spoon theory, spoons are the “currency” tied to those expenditures of energy, and you’re like Scrooge McDuck swimming in a bottomless pool of spoons. No matter how far you dive, you’ve never hit the bottom of the pool. In fact, it’s probably never crossed your mind that there is a bottom to the pool! I’m not talking about the “I’m tired, it’s been a long day, I don’t feel like doing anything else” bottom; I’m talking about the “my body and brain will physically not allow me to do one more thing, period” bottom. No matter how many spoons you spend, there are still more spoons waiting for you. Around 90% of you are in the top 1% of spoon ownership- an endless supply of spoons to spend without having to think about it.
For folks with chronic illness, whether it be an autoimmune disorder, chronic fatigue, fibromyalgia, or some mental health disorders, we don’t have this luxury. We’re living “paycheck to paycheck” on a limited supply of spoons and have to plan our days very carefully because once our spoons are gone, they’re gone. Think of a wind-up toy- once the toy winds down, it stops in its tracks until someone winds it up again. Unfortunately, we have no “wind-up” mechanism. Our spoons don’t replenish during the day. We can’t borrow against future spoons. We don’t even know how many spoons we’re going to start the day with. Sometimes we have ten, sometimes we have two. It’s a mystery! The only things we know for certain- we’re going to run out of spoons at some point during the day, and every single activity and decision we make costs at least one spoon. Some activities are more expensive than others. Brushing your teeth may cost one spoon but attending a big meeting at work might cost ten. Once we’re out of spoons, even something seemingly mundane like deciding what to eat for dinner might be more than we can handle. When the spoons are gone, we’re done. Do not pass go, do not collect $200.
A Challenge
Spoon theory helps to demonstrate that decisions that seem simple to healthy people aren’t quite as simple for people living with chronic illness. Living with an invisible illness means having a limited capacity to complete tasks. The mind is constantly evaluating and deciding how to proceed through the day to accomplish everything we need to accomplish while not expending more energy than necessary. Some days, we may be out of spoons before we even get to work. If you really want to understand what this is like, here are a couple of challenges for you:
Keep a tally tomorrow of every spoon you spend. Keep it simple and assign one spoon to every activity and decision. Get dressed, one spoon; drive to work, one spoon; every email you send, spoon; decide where to eat lunch, spoon; call your doctor to make an appointment, spoon. At the end of the day, add it all up- how many spoons did you spend? Are you surprised? Now imagine you started that same day with ten spoons- how would you decide which activities or decisions to eliminate to preserve enough spoons to make it through the day? Would you have enough spoons to accomplish all of your big tasks? Remember, when you’re out of spoons, you’re done. Your body will not allow you to accomplish one more thing, your brain will not make one more decision.
First thing in the morning, grab a handful of spoons out of your kitchen drawer. The spoons in your hand are your entire energy reserve for the day. Take a look at your morning routine; take a look at your calendar- start eliminating. How do you ration your spoons? Set a spoon aside each time you complete an activity or make a decision- did you accomplish what you needed to accomplish before you ran out? How quickly did you run out? Now imagine if every activity had a different cost. I’m assuming that spending one spoon per activity was pretty eye opening; now consider that most of those things, in reality, probably cost more than one spoon each. Pretty sobering, right?
How this Applies to the ADA
This is where identifying and defining the essential functions of the job comes into play for an ADA accommodation. Essential functions are the basic job duties that an employee must be able to perform, with or without a reasonable accommodation. You should carefully examine each role to determine which functions or tasks are essential to performance and which functions or tasks are ancillary. When determining if a job function is essential, you should consider:
Whether the reason the position exists is to perform that function,
The number of other employees available to perform the function or among whom the performance of the function can be distributed, and
The degree of expertise or skill required to perform the function.
Would this position exist but-for the performance of this job function? Would the position look fundamentally different without this job function? It’s important to look not only at your job descriptions but also at how the role is actually performed. The ADA does not require an employer to reallocate essential functions of the job as a reasonable accommodation; however, an employer may be required to remove and reallocate non-essential functions.
Once you’ve identified the essential functions, it’s important that you ensure your job descriptions and job postings clearly outline those essential functions. A written job description prepared before hiring for a role will be considered by the EEOC as evidence of essential functions, along with the actual work experience of present or past employees in that job, the time spent performing the function, the consequences of not requiring that an employee perform the function, and, if applicable, the terms of a collective bargaining agreement. Keep in mind that designating a function as essential doesn’t mean that it’s actually essential, but the EEOC will take the employer’s job descriptions in mind when determining if a function is essential.
The example I see most frequently here are job descriptions requiring work be performed on-site. The intent of the employer is to designate this as an essential function by including it in the job description when, in a lot of cases, it’s really just a preference that employees work from the office, not a requirement of performance. In the case where the employee must perform hands-on work, such as servicing customers in a retail environment or setting up on-site AV equipment multiple times per day, consistently, then yes, working on site may be an essential function, but in cases where the employee could perform the job off-site with slight technological modifications, like answering customer calls in a queue from home with the right computer software installed, designating a requirement to work on-site as essential doesn’t necessarily make it essential for purposes of a reasonable accommodation. While an employer is perfectly within their right to require employees report for work as standard policy, the ADA may require exceptions to this policy for purposes of an accommodation, absent an undue hardship.
Conclusion
Because the ADA is so nuanced and requires a case-by-case analysis for each accommodation requested, we highly recommend you consult with an employment attorney or HR professional when reviewing a request for accommodation. Additionally, we strongly recommend a review of your job descriptions to ensure they reflect the true essential functions for each role. Give us a call for assistance with job descriptions, setting up an accommodations request process, or to review a specific employee issue or accommodation request. We’re here to help.
Join us next time as we discuss undue hardship in Part 4 of our series on ADA Compliance with Compassion. What is an undue hardship, and what obligations do you have to accommodate an employee if the accommodation requested would cause an undue hardship for the employer? Stay tuned.
Previous articles in our series:
ADA Compliance with Compassion, Part 1: A Series of Articles on Mental Health & Employment
ADA Compliance with Compassion, Part 2: Mental Health & the Interactive Accommodations Process
If you have any questions regarding ADA compliance issues, please feel free to contact Columbus, OH attorney, Chisa Chervernick.