ADA Essential Functions and Job Descriptions: How to Identify and Write Them

Why Essential Functions Matter

The ADA protects a "qualified individual," defined as a person 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); 29 C.F.R. § 1630.2(m)). Three things follow from that definition:

• Qualification is measured against essential functions only. A person who cannot perform a marginal duty because of a disability is still qualified.
• Marginal functions can be moved. Job restructuring, a listed form of reasonable accommodation, means "reallocating or redistributing nonessential, marginal job functions" (29 C.F.R. Part 1630, Appendix, § 1630.2(o)).
• Essential functions do not have to be removed. The same appendix states that an employer "is not required to reallocate essential functions."

So the classification decides the outcome. If unloading the delivery is marginal, reassigning it is a routine accommodation. If it is essential, the question becomes whether she can do it with an accommodation such as a cart or a lift assist. For background, see who is protected under the ADA and job restructuring under the ADA.

How the Regulations Define ADA Essential Functions

Under 29 C.F.R. § 1630.2(n)(1), essential functions are "the fundamental job duties of the employment position the individual with a disability holds or desires." The term "does not include the marginal functions of the position."

The regulation gives three reasons a function may be essential (29 C.F.R. § 1630.2(n)(2)):

These reasons are introduced with "including but not limited to," so the list is not closed.

The appendix describes the analysis in two steps. First, does the employer actually require employees in the position to perform the function? If the employer says typing is essential but has never required anyone in the job to type, that is evidence it is not. Second, if the function is actually performed, would removing it fundamentally alter the position?

The Seven Types of Evidence

The regulation lists evidence of whether a function is essential (29 C.F.R. § 1630.2(n)(3)):

1. The employer's judgment as to which functions are essential.
2. Written job descriptions prepared before advertising or interviewing applicants for the job.
3. The amount of time spent on the job performing the function.
4. The consequences of not requiring the incumbent to perform the function.
5. The terms of a collective bargaining agreement.
6. The work experience of past incumbents in the job.
7. The current work experience of incumbents in similar jobs.

Three points about this list are often misunderstood.

It is not exhaustive, and no item outranks the others. The appendix says whether a function is essential is "a factual determination that must be made on a case by case basis," that all relevant evidence should be considered, and that "greater weight will not be granted to the types of evidence included on the list than to the types of evidence not listed."

Time spent is evidence, not a threshold. The appendix offers two examples that point in opposite directions. An employee who spends the vast majority of the day at a cash register has an essential function of operating it. A firefighter may rarely carry an unconscious adult out of a burning building, yet the consequence of not requiring that ability would be serious. A function performed rarely can still be essential.

Staffing changes the answer. The appendix notes that functions that might not be essential with a larger staff may become essential when the staff is small relative to the volume of work.

What a Job Description Does and Does Not Prove

The statute gives job descriptions specific recognition: "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if 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" (42 U.S.C. § 12111(8)).

• It is evidence, not proof. The description is considered. It is not conclusive, and under the appendix it carries no more weight than other evidence.
• Timing is written into the statute. The description that receives this recognition is one "prepared before advertising or interviewing." A description rewritten after an accommodation dispute begins does not fit that language.
• Job descriptions are not required. The appendix says Part 1630 "does not require employers to develop or maintain job descriptions."
• Practice has to match the paper. The work experience of past and current incumbents is also listed evidence. If the description says one thing and three incumbents describe another, expect their accounts to carry weight.

The appendix makes a related point about performance standards. The essential functions inquiry "is not intended to second guess an employer's business judgment with regard to production standards." An employer that requires typists to type 75 words per minute, or hotel staff to clean 16 rooms per day, does not have to justify the number. It does have to show "that it actually imposes such requirements on its employees in fact, and not simply on paper." The EEOC's guidance on performance and conduct standards adds that lowering a production standard is not a reasonable accommodation.

How to Identify Essential Functions

Complete this analysis for each position before you write the description. This is a recommended practice, not a regulatory checklist.

1. List what the job actually does. Interview incumbents and the supervisor. Observe if you can. Start from the work, not from the old description.
2. State each duty as an outcome. "Moves supply cartons from the receiving dock to the stockroom" describes what must be accomplished. "Lifts and carries 40-pound cartons" describes one way of doing it. The outcome is usually the function, and the method is where accommodation happens.
3. Test each duty against the three regulatory reasons. Does the job exist to do this? Is there anyone else to do it? Was the person hired for this expertise?
4. Record the evidence the regulation lists. Approximate share of time, frequency, what happens if it is not done, who else does or could do it, and any collective bargaining terms.
5. Ask whether removing the duty would fundamentally alter the job. If the answer is no, it is marginal.
6. Separate qualifications and physical demands from functions. A degree, a license, or the ability to stand for long periods is a qualification standard, not a function. Qualification standards that screen out people with disabilities must be job-related and consistent with business necessity (29 C.F.R. § 1630.10(a)).
7. Have the supervisor and an incumbent confirm it, then date it.

Return to the opening example. If the delivery takes about 30 minutes a week, four other employees have done it, and the job exists to process accounts payable, the duty looks marginal and reassigning it is an ordinary accommodation. If she is the only employee on site on delivery day, the analysis is harder.

Sample Essential-Functions Section

This is a fictional example for illustration. The position, percentages, and requirements are invented.

This section is useful as evidence because each function is stated as an outcome, frequency and approximate time are recorded, marginal duties are labeled, physical demands describe the actual job, and the description is dated.

Common Drafting Mistakes

Attendance and on-site presence deserve care. The EEOC's guidance says employers need not accept irregular, unreliable attendance or grant open-ended schedules, but it also says time and attendance rules may have to be modified as a reasonable accommodation absent ADA undue hardship. See ADA undue hardship. Whether presence at the worksite is essential to a particular job depends on what the job actually requires. Courts differ on attendance and on-site presence as essential functions; confirm the rule in your circuit with counsel. See remote work as an ADA reasonable accommodation.

Using the Description in the Accommodation Process

A good description speeds up the ADA interactive process:

• Medical documentation. Send the provider the essential functions and ask which ones the employee can perform, with what restrictions, and for how long.
• Return to work. Compare restrictions with essential functions before deciding. See "100% healed" and maximum-leave policies.
• Safety. The ADA direct threat standard asks about the person's ability to safely perform the essential functions.
• The file. Record which functions were at issue and how you classified them; see documenting the ADA accommodation request process.

Do not assume the same rules apply to pregnancy. Under the Pregnant Workers Fairness Act, an employee can be qualified even if she temporarily cannot perform an essential function, if the function could be performed in the near future and the inability can be reasonably accommodated (42 U.S.C. § 2000gg(6)). See essential functions under the PWFA. The Leave and Accommodation Management course teaches the ADA and PWFA together so that difference stays clear.

Frequently Asked Questions

The Bottom Line

Essential functions are a question of fact, decided on evidence about what the job really requires. A job description is useful evidence when it was written before the dispute, reflects what incumbents actually do, and separates fundamental duties from marginal ones. Written that way, it also makes accommodation decisions faster and more consistent. State law may differ from the ADA; check state law in each state where you have employees. This article is general education, not legal advice.

Use the ADA Compliance Checklist to audit your current descriptions and the Glossary of ADA Terms for the definitions used here. The ADA Accommodation Guide shows where this step fits in the full process, and the two-day Leave and Accommodation Management course applies it to return-to-work and accommodation scenarios through case studies and exercises.