The law giveth, and the law taketh away.  The ADA Amendments Act of 2008 (ADAAA) makes it significantly more difficult for employers to defend ADA cases.  But a recent ruling by the Eleventh Circuit Court of Appeals that even infrequent activities may constitute essential functions of an employee’s position makes it clear that employers still have powerful defenses available to them. 

First, some background.  The ADAAA and its implementing regulations expand the definition of “disability,” and even provide that the definition of “disability” should be “broadly” construed” to the “maximum extent permitted” by the terms of the ADA.  Thus, the focus in ADA cases is now on whether discrimination occurred, rather than on whether the plaintiff has a disability. 

One argument that discrimination did not occur is that the employee was unable to perform the essential functions of his job, with or without a reasonable accommodation.  This defense stems from the definition of a “qualified individual,” which is one of the elements a plaintiff must prove as part of his prima facie case.  A “qualified individual” is “someone with a disability who, ‘with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8)). 

The Eleventh Circuit Court of Appeals has long noted that “essential functions ‘are the fundamental job duties of a position that an individual with a disability is actually required to perform.’”  Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000) (per curiam)).

In Cremeens v. The City of Montgomery, Alabama, Case No. 10-14695 (11th Cir., May 31, 2011), the court tackled the question of how frequently an employee is required to perform such duties in order for them to be deemed “essential.” 

Cremeens was a fire investigator for the City of Montgomery who, because of his disability, was unable to engage in firefighting.  The city argued that it was not required to retain Cremeens because he could not perform the “essential function” of firefighting.  Cremeens argued that fire investigators rarely had to engage in firefighting and that this was not an essential function of the position.

To resolve this dispute, the court cited the ADA’s implementing regulations, which provide a non-exclusive list of factors indicating whether a particular function is essential.  They include:  (1) the employer’s judgment as to which functions are essential; (2) the written job descriptions of the position; (3) the amount of time spent on the job performing the function; and (4) the consequences of not requiring the individual to perform the function. 29 C.F.R. § 1630.2(n)(3).  With respect to the first factor, the court noted that courts give “substantial weight” to the employer’s judgment as to what functions of a position are essential, “but that factor alone is not conclusive.” 

In Cremeens, it was undisputed that fire investigators rarely engage in firefighting activities.  In addition, there is nothing in the court’s opinion to indicate that the city had a written job description for fire investigators that included firefighting as an essential function.  Nevertheless a combination of the first factor (the employer’s judgment as to which functions are essential) and the fourth factor (the consequences of not requiring the individual to perform the function)  was enough to carry the day for the city:

Assistant Chief Davis, the division chief of the Fire Investigations Division, testified that Fire Investigators may be ordered to engage in fire suppression activities by either a superior officer or an on-scene fire commander and that failure to comply could subject them to disciplinary action. Davis also testified that, even absent such an order, Fire Investigators have a responsibility to engage in fire suppression activities if the lives of other firefighters or civilians are in danger and fire suppression units are not on the scene. Fire Investigators may engage in fire suppression activities infrequently, but that does not mean firefighting is a nonessential function of the position. Indeed, the firefighting function is essential whenever the need arises, and the consequences of not requiring a Fire Investigator to engage in fire suppression activities when necessary could be dire.

Accordingly, the court held that Cremeens was not a “qualified individual” within the meaning of the ADA, and affirmed the district court’s grant of summary judgment in favor of the city.

For employers within the Eleventh Circuit (Florida, Georgia and Alabama), Cremeens establishes the important principle that a job function need not be performed frequently in order to be deemed “essential.”  If the employer regards the job function as essential, and can show that the consequences of not performing this function would be detrimental to the employer, the employer may be able to show that the function is essential even if it is rarely performed.  In Cremeens, the employer was able to make this showing in the absence of a job description that reflected its judgment that firefighting was essential.  But, to increase the likelihood of prevailing on this defense, employers should include all of the essential functions of a position in a written job description.