Have you ever had an employee ask you to modify or eliminate an essential function of the job in order to accommodate a disability? If asked, are you required to do so? The Washington Court of Appeals has confirmed that the answer is “no, you are not.”

In Fey v. State of Washington, the Court held that an employer is not required to modify essential job functions in order to accommodate an employee’s disability. Plaintiff Fey was employed by the Community Colleges of Spokane (a community college district) in a grounds position. A primary duty of the grounds crew was the removal of snow and ice from college property during winter, which required driving commercial weight vehicles. Federal law requires that individuals obtain a state commercial driver’s license (CDL), minimum standards for which are federally imposed, in order to drive the commercial trucks. Fey was unable to pass the physical exam for the CDL because of a genetic eye condition. Although Fey was grandfathered by a union contract into his current position (despite not having a CDL), when he applied for promotion to an open position, the employer knew that Fey was unable to get the required license and did not interview him for the opening. Fey sued for failure to accommodate his genetic eye disorder under the Americans with Disabilities Act (ADA) and Washington Law Against Discrimination (WLAD).

While the jury held that the employer had failed to reasonably accommodate Fey’s genetic eye disorder, the Washington Court of Appeals reversed. Because Fey could not perform an essential function – in his case, obtaining a commercial driver’s license in order to drive commercial weight equipment – his federal and state law claims of failure to accommodate his disability were subject to dismissal.

Under both laws, employers must provide “reasonable accommodations” to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the accommodation would impose an undue hardship. “Undue hardship” is an employer’s last defense, and can be difficult to prove. But as the Court noted, “the primary protection of the employer’s operational and business interest in reasonable accommodation cases … is the fact that the employee bears the burden of proving that he or she is otherwise qualified for the position held or desired, with an accommodation that is reasonable in the run of cases.” A “qualified individual” is one who, with or without reasonable accommodation, can perform the essential functions of the job.

The central issue at Fey’s trial was whether being able to drive the employer’s commercial weight vehicles was an essential function of the grounds position sought by Fey. In holding that it was, the Court provided several “gems” for employers defending failure to accommodate cases:

  • An employer is not required to modify or change a job’s essential functions to accommodate an employee: “Washington law is well settled that to prove a claim for failure to accommodate, a plaintiff must demonstrate that he or she can perform the essential functions of the job as determined and applied by the employer—not that the employer could revamp the essential functions of a job to fit the employee.”
  • In determining what should be considered essential functions under Washington disability law, the Court looked for guidance to federal regulations that provide a nonexclusive list of evidence relevant to whether a function is essential.
  • First and foremost, the Court looked to “the employer’s judgment as to which functions are essential” – including the employer’s written job description – holding that the employer’s judgment as to the essential functions of a position “is entitled to deference” by the Court.
  • Other factors taken into consideration included: the amount of time spent performing the function; the consequences of not having the employee perform the function; the terms of any collective bargaining agreement; and the current and past work experience of employees in the job.
  • The Court refused to hold against the employer that an accommodation had been made temporarily by waiving the essential function.
  • The Court confirmed that its role was not to become a super-employment committee: The fact finder’s role is to determine whether the functions that the employer claims are essential are ones that the employer in fact treats as essential. “If the employer’s identification of its allocation of functions is borne out by its conduct, the fact finder’s role does not extend to substituting its own judgment for how the employer should allocate essential work among employment positions in the workplace.”
  • Finally, the Court rejected Fey’s claim based on the district’s failure to engage in the interactive process. “A failure to engage in an interactive process does not form the basis of a disability discrimination claim in the absence of evidence that accommodation was possible.” In other words, if no reasonable accommodation is available, the employer will not be separately liable for failure to engage in the interactive process.

Because Fey conceded that he could never qualify for a CDL and thus could not drive commercial grade trucks, which the Court agreed was an essential function, his claim failed.

A couple of practice pointers for employers:

  • Keep your job descriptions up to date and accurate. Revisit the essential functions listed on descriptions to be sure that you can defend them. Job descriptions are frequently out of date, because they have often been written by someone who is no longer at the company.
  • Be prepared to demonstrate that in practice the items listed on a job description are in fact treated as essential functions.