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Keep job descriptions current and accurate to prevent liability
A job description identifying essential job functions can be an employer's best friend—if drafted correctly.
Two recent cases illustrate the importance of accurate job descriptions. Eddy Reyes was a sales representative for a beverage distribution company, visiting multiple accounts daily, selling and taking inventory, collecting funds, making deposits, placing advertising posters, and making calls on prospective customers in New York.
Following an auto accident, he applied for and was granted Family and Medical Leave Act (FMLA) leave. About eight weeks later, in anticipation of Reyes returning to work, the company sent Reyes' job description to his doctors and asked that they advise of any restrictions. The job description detailed his sales responsibilities, but in the "Required Knowledge Skills / Abilities" section, made no mention of any physical skills such as walking, standing, pushing or pulling. Rather, it focused on customer service skills such as industry and product knowledge, and oral and written communication skills. Reyes thereafter provided medical documentation that he could return to work full time but "should refrain from prolonged walking, standing, running or jumping." The employer advised him his previous positon was no longer available but it would find a new position for him in three to four weeks.
That was a mistake. Under the FMLA regulations, an employer can only condition an employee's return to work on a fitness for duty for a specific job if the employer provided a list of the essential functions of the job with the FMLA designation notice, i.e., within five days of having enough information to determine whether the leave was being taken for an FMLA-qualifying reason. Reyes' employer, however, first provided a list of the essential functions of Reyes' job, in the form of his job description, approximately eight weeks after Reyes was granted FMLA leave. The court in Reyes v. Phoenix Beverages, Inc. noted that the employer could not rely on its standard policy, applicable to all sales representatives who took leave for a medical condition, that they get a medical release stating they could return to full duty without restrictions. Rather, the court said, if the employer wanted to require Reyes to obtain a certification of fitness to return to a specific job, it should have timely provided a list of the essential functions of that job.
Initially, the court also noted that Reyes' job description did not include any physical skills relating to Reyes' restrictions and, as such, held that there was no genuine issue of material fact as to whether prolonged walking or standing were essential functions of Reyes' specific job. On reconsideration, the court said that the testimony of Reyes' supervisor and Reyes himself concerning Reyes' job duties, counterbalanced against the job description—which did not list any physical limitations—created an issue of fact as to whether prolonged walking or standing were essential functions of Reyes' job. As a result, the court rejected the employer's request for summary judgment in its favor and allowed the case to proceed to trial. Had Reyes' job description stated prolonged walking and standing were required skills or abilities, the court may have ruled differently.
The employer in Green v. BakeMark USA, LLC fared better, because the evidence—including a job description—made clear the employee could not perform the essential functions of the job. Brian Green was an operations manager responsible for directing and coordinating all warehouse activity, including interacting with department associates, overseeing transportation operations and personnel to ensure timely deliveries, reviewing weekly reports, maintaining the sanitation and physical condition of the warehouse, and performing other general supervisory tasks.
Green claimed his employer violated the Americans with Disabilities Act when it failed to accommodate his disability by allowing him to work only four hours a day. However, testimony from management and Green both made clear the job required at a minimum 50 hours a week, and the written job description emphasized the position's full-time nature by stressing the "supervisory responsibilities." The Sixth Circuit Court of Appeals affirmed the trial court's ruling in favor of the employer.
The takeaway: Keep job descriptions current and accurate. If the job description is out of date when an employee seeks FMLA leave, create a current and accurate list of essential job functions, indicate in the designation notice that the employee will be required to submit a fitness for duty certification addressing his or her ability to perform his or her specific job, and provide the list of essential job functions with the notice.
Sarah Lis practices labor and employment law at Akerman LLP in Fort Lauderdale and contributes to the HR Defense Blog. © 2017 Akerman. All rights reserved. Reposted with permission.
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