ADA Job Restructuring Law
Can federal employment laws require an employer to change an employee’s job duties, as an accommodation for a disability? The answer is sometimes, depending on the circumstances. The analysis often turns on whether the duties at issue are “essential functions” of the employee’s job, and whether co-workers are available to take on the duties (in exchange for the disabled employee taking on some of their duties).
Both Title I of Americans with Disabilities Act and Section 504(a) of Rehabilitation Act of 1973 (for employers receiving federal funds) require employers to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A); Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001) (holding that discrimination under Rehabilitation Act includes failure to accommodate and applying same standard as that used for ADA failure-to-accommodate claims).
Reasonable Accommodation Defined
A reasonable accommodation is one that “enables [a qualified] individual with a disability … to perform the essential functions of [a] position.” 29 C.F.R. § 1630.2(o)(1)(ii). The ADA expressly contemplates that a reasonable accommodation may require “job restructuring.” 42 U.S.C. § 12111(9)(B). The Fourth Circuit holds that job restructuring to shift a marginal, nonessential task to other employees can be a reasonable accommodation, especially where replacement tasks are shifted back to the disabled employee to avoid increasing the overall workload of other employees. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 580-81 (4th Cir. 2015) (“Jacobs’s proposed accommodation was to work fewer days at the counter and more days microfilming or performing other deputy clerk tasks. This proposed accommodation did not require the AOC to increase the workload of Jacobs’s coworkers; Jacobs merely asked that her employer change which deputy clerk was assigned to which task … A reasonable jury could therefore conclude that Jacobs’s requested accommodation was reasonable.”)
To prevail on a failure to accommodate claim, an employee must show: “(1) that [he] was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of [his] disability; (3) that with reasonable accommodation [he] could perform the essential functions of the position; and (4) that the employer refused to make such accommodations.” Jacobs, 780 F.3d at 579 (quoting Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).)
The Essential Functions Questions
Job-restructuring implicates the third element, which asks whether the proposed restructuring accommodation would allow the employee to perform the “essential functions” of the position. Employers sometimes believe that if a duty is included in an employee’s job description, it is an “essential” function of the job, and therefore the ADA cannot require the employer to shift that duty to other employees. This is not necessarily true. While job descriptions may be relevant evidence in determining the essential functions of a job, they are not dispositive. As the Fourth Circuit holds:
Not all job requirements or functions are essential. A job function is essential when “the reason the position exists is to perform that function,” when there aren’t enough employees available to perform the function, or when the function is so specialized that someone is hired specifically because of his or her expertise in performing that function.
Jacobs, 780 F.3d at 579 (quoting 29 C.F.R. § 1630.2(n)(2)). “[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” Id. (quoting 42 U.S.C. § 12111(8) (emphasis added)). “Other relevant evidence can include ‘the employer’s judgment as to which functions are essential,’ ‘the amount of time spent on the job performing the function,’ ‘the consequences of not requiring the incumbent to perform the function,’ and the work experience of people who hold the same or similar job.” Id. (quoting 29 C.F.R. § 1630.2(n)(3)).
Jacobs involved a court clerk with social anxiety who sought to have her job restructured so she did not have to work at the counter in the clerk’s office, and would perform additional clerk’s duties instead. Jacobs at 580. The Fourth Circuit held that even though the clerk’s job description named “customer service” as a function, working at the counter was not necessarily an “essential function” of the clerk position because, inter alia, “many employees were available to perform that function.” Jacobs, 780 F.3d at 580.
If applying these factors indicate the job duty at issue is not an essential function, the employer may have an obligation to shift that duty to other employees as a disability accommodation, with the disabled employee taking on some replacement duties so her co-workers do not have to do more work overall. Federal appellate courts applying the ADA consistently hold that job restructuring to shift non-essential functions can be a reasonable accommodation. In addition to Jacobs, see Rorrer v. City of Stow, 743 F.3d 1025, 1044 (6th Cir. 2014) (“Shifting marginal duties to other employees who can easily perform them is a reasonable accommodation.”); Henschel v. Clare County Road Com’n, 737 F.3d 1017, 1023–24 (6th Cir. 2013) (The “ADA requires job restructuring of non-essential duties as a reasonable accommodation in appropriate circumstances”; hauling the excavator not necessarily an essential function of the excavator operator position, as there were a number of other employees who could perform this task); Benson v. Northwest Airlines, 62 F.3d 1108, 1112 (8th Cir. 1995) (stating that reasonable accommodation may “involv[e] reallocating the marginal functions of a job”); U.S. EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1284 (7th Cir. 1995) (“The ADA defines ‘reasonable accommodation’ to include restructuring a job, such as by removing non-essential functions from the job.”) (citing 42 U.S.C. § 12111(9)(B) and 29 C.F.R. § 1630.2(o)); Davidson v. Am. Online, Inc., 337 F.3d 1179, 1192 (10th Cir. 2003) (“a restructuring of the non-essential requirements” of a job could be a reasonable accommodation); Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d 232, 240 (D.C. Cir. 2018), cert. denied, 139 S.Ct. 1201 (2019) (“an employer may be required to accommodate an employee’s disability by ‘reallocating or redistributing nonessential, marginal job functions,’ or by providing an aide to enable the employee to perform an essential function without replacing the employee in performing that function.” (quoting 29 C.F.R. Pt. 1630, App.) (emphasis in original)).
To recap, under the ADA or Rehab Act, a reasonable disability accommodation could therefore entail shifting certain “non-essential” tasks to other employees and shifting from those employees to the disabled employee additional work that she can perform independently. See Jacobs at 580-81. Because this kind of accommodation would shift additional tasks back to the disabled employee and therefore not increase the overall workload of other employees, cases like Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 323 (4th Cir. 2011) (noting that “an accommodation that would require other employees to work harder is unreasonable”) would not apply.
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