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Section 1630.2(m) Qualified Individual with a Disability The ADA
prohibits discrimination on the basis of disability against
qualified individuals with disabilities. The determination of
whether an individual with a disability is "qualified" should be
made in two steps. The first step is to determine if the
individual satisfies the prerequisites for the position, such as
possessing the appropriate educational background, employment
experience, skills, licenses, etc. For example, the first step in
determining whether an accountant who is paraplegic is qualified
for a certified public accountant (CPA) position is to examine
the individual's credentials to determine whether the individual
is a licensed CPA. This is sometimes referred to in the
Rehabilitation Act caselaw as determining whether the individual
is "otherwise qualified" for the position. See Senate Report at
33; House Labor Report at 64-65. (See section 1630.9 Not Making
Reasonable Accommodation).
The second step is to determine whether or not the individual can
perform the essential functions of the position held or desired,
with or without reasonable accommodation. The purpose of this
second step is to ensure that individuals with disabilities who
can perform the essential functions of the position held or
desired are not denied employment opportunities because they are
not able to perform marginal functions of the position. House
Labor Report at 55.
The determination of whether an individual with a disability is
qualified is to be made at the time of the employment decision.
This determination should be based on the capabilities of the
individual with a disability at the time of the employment
decision, and should not be based on speculation that the
employee may become unable in the future or may cause increased
health insurance premiums or workers' compensation costs.
Section 1630.2(n) Essential Functions
The determination of which functions are essential may be
critical to the determination of whether or not the individual
with a disability is qualified. The essential functions are those
functions that the individual who holds the position must be able
to perform unaided or with the assistance of a reasonable
accommodation.
The inquiry into whether a particular function is essential
initially focuses on whether the employer actually requires
employees in the position to perform the functions that the
employer asserts are essential. For example, an employer may
state that typing is an essential function of a position. If, in
fact, the employer has never required any employee in that
particular position to type, this will be evidence that typing is
not actually an essential function of the position.
If the individual who holds the position is actually required to
perform the function the employer asserts is an essential
function, the inquiry will then center around whether removing
the function would fundamentally alter that position. This
determination of whether or not a particular function is
essential will generally include one or more of the following
factors listed in part 1630.
The first factor is whether the position exists to perform a
particular function. For example, an individual may be hired to
proofread documents. The ability to proofread the documents would
then be an essential function, since this is the only reason the
position exists.
The second factor in determining whether a function is essential
is the number of other employees available to perform that job
function or among whom the performance of that job function can
be distributed. This may be a factor either because the total
number of available employees is low, or because of the
fluctuating demands of the business operation. For example, if an
employer has a relatively small number of available employees for
the volume of work to be performed, it may be necessary that each
employee perform a multitude of different functions. Therefore,
the performance of those functions by each employee becomes more
critical and the options for reorganizing the work become more
limited. In such a situation, functions that might not be
essential if there were a larger staff may become essential
because the staff size is small compared to the volume of work
that has to be done. See Treadwell v. Alexander, 707 F.2d 473
(11th Cir. 1983).
A similar situation might occur in a larger work force if the
workflow follows a cycle of heavy demand for labor intensive work
followed by low demand periods. This type of workflow might also
make the performance of each function during the peak periods
more critical and might limit the employer's flexibility in
reorganizing operating procedures. See Dexler v. Tisch, 660 F.
Supp. 1418 (D. Conn. 1987).
The third factor is the degree of expertise or skill required to
perform the function. In certain professions and highly skilled
positions the employee is hired for his or her expertise or
ability to perform the particular function. In such a situation,
the performance of that specialized task would be an essential
function. Whether a particular function is essential is a factual
determination that must be made on a case by case basis. In
determining whether or not a particular function is essential,
all relevant evidence should be considered. Part 1630 lists
various types of evidence, such as an established job
description, that should be considered in determining whether a
particular function is essential. Since the list is not
exhaustive, other relevant evidence may also be presented.
Greater weight will not be granted to the types of evidence
included on the list than to the types of evidence not listed.
Although part 1630 does not require employers to develop or
maintain job descriptions, written job descriptions prepared
before advertising or interviewing applicants for the job, as
well as the employer's judgment as to what functions are
essential are among the relevant evidence to be considered in
determining whether a particular function is essential. The terms
of a collective bargaining agreement are also relevant to the
determination of whether a particular function is essential. The
work experience of past employees in the job or of current
employees in similar jobs is likewise relevant to the
determination of whether a particular function is essential. See
H.R. Conf. Rep. No. 101-596, 101st Cong., 2d Sess. 58 (1990)
[hereinafter Conference Report]; House Judiciary Report at 33-34.
See also Hall v. U.S. Postal Service, 857 F.2d 1073 (6th Cir.
1988).
The time spent performing the particular function may also be an
indicator of whether that function is essential. For example, if
an employee spends the vast majority of his or her time working
at a cash register, this would be evidence that operating the
cash register is an essential function. The consequences of
failing to require the employee to perform the function may be
another indicator of whether a particular function is essential.
For example, although a firefighter may not regularly have to
carry an unconscious adult out of a burning building, the
consequence of failing to require the firefighter to be able to
perform this function would be serious.
It is important to note that the inquiry into essential functions
is not intended to second guess an employer's business judgment
with regard to production standards, whether qualitative or
quantitative, nor to require employers to lower such standards.
(See section 1630.10 Qualification Standards, Tests and Other
Selection Criteria). If an employer requires its typists to be
able to accurately type 75 words per minute, it will not be
called upon to explain why an inaccurate work product, or a
typing speed of 65 words per minute, would not be adequate.
Similarly, if a hotel requires its service workers to thoroughly
clean 16 rooms per day, it will not have to explain why it
requires thorough cleaning, or why it chose a 16 room rather than
a 10 room requirement. However, if an employer does require
accurate 75 word