December 23, 2013
If you have been to one of Clemans Nelson’s seminars on the fundamentals of a sound H.R. system you have heard Brian Butcher or Michael Esposito say, “the two key parts of any sound H.R. system are (1) your job descriptions and (2) your policy manual.” Without these documents the employer will inevitably find itself in an undesirable position. “What exactly is an ‘undesirable position’?”, employers may ask. There are many different answers to that question, but one would certainly be being sued for violating the Americans with Disabilities Act.
In Henschel v. Clare County Road Commission (6th Cir. 12/13/13), the Clare County Road Commission (“CCRC”) employed Wayne Henschel as an excavator operator. The employer believed that being able to haul the excavator to the job site was an essential duty of the job. Two years into Mr. Henschel’s employment with the CCRC he was involved in a motorcycle accident that resulted in an above the knee amputation of his left leg. During his recovery, he informed others that he desired to return to work.
As an excavator operator, Mr. Henschel was responsible for hauling the excavator to the job site on a trailer pulled by a manual transmission semi-truck a majority of the time. However, the CCRC specified the duty to haul equipment as a function assigned to its job description for Truck/Tractor Driver. Additionally, the CCRC did not include the hauling function in its Operator Excavator job description.
After Mr. Henschel’s recorvery, he asked to return to work. The CCRC ended up terminating his employment because of his inability to transport the excavator to the work site. Prior to termination, the CCRC did not ask any of its other employees who were qualified to drive the semi-truck if they would be will to drive the semi-truck to transport the excavator when needed. Mr. Henschel filed a claim against the CCRC with the Equal Employment Opportunity Commission (EEOC), and subsequently filed suit under the Americans with Disabilities Act. The District Court held that transporting the excavator was an essential function and that reassigning him to a year-round truck driver position was not a reasonable accommodation.
The Sixth Circuit Court of Appeals reversed the District Court. In reversing the lower court, the Court of Appeals laid out the following seven factors in determining whether a particular function is essential:
- The employer’s judgment as to which functions are essential;
- Written job descriptions prepared before advertising or interviewing applicants for the job;
- The amount of time spent on the job performing the function;
- The consequences of not requiring the incumbent to perform the function;
- The terms of a collective bargaining agreement;
- The experience of past incumbents in the job; and/or
- The current work experience of incumbents in similar jobs.
The Court of Appeals specifically stated, “A court also must “conduct a fact-specific inquiry into both the employer’s description of the job and how the job is actually performed in practice.” (Emphasis added.) In reviewing the employer’s job description the Court expressly noted that the duty to haul equipment was already assigned to another job description and none of the excavator job descriptions included hauling the excavator or driving a manual transmission as an essential duty. The Appellate Court remanded the matter back to the trial court to determine if Mr. Henschel was qualified, with or without accommodations, to perform the various functions throughout the year of the excavator operator position.
John Hyman, author of Ohio Employer’s Law Blog stated it best, “[i]n this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.” And in this day and age, employers need all the help they can get.
For more information on job descriptions or other human resource needs please contact Andrew Esposito or Brian Butcher toll free at (800)-282-0787.
