Eleventh Circuit’s New “Percentage” Factor for Identifying Essential Job Functions

Under the Americans with Disabilities Act, employers must reasonably accommodate otherwise qualified employees with disabilities. In this context, “qualified” means an employee can perform the essential functions of their job, with or without an accommodation. “Essential functions” include job duties that an individual is required to perform, perhaps because there are few alternate employees able to perform that function, or because the function is highly specialized.

Factors relevant to deciding whether a function is essential may include:

• The employer’s judgment as to what is essential.
• Whether the function is included in the individual’s written job description.
• The amount of time the individual typically spends performing the function.
• The consequences of not requiring the individual to perform the function.
• The experience of those who previously held the job.
• The experience of those currently holding similar jobs.

In Brown v. Advanced Concept Innovations, LLC, Case No. 21-11963, 2022 BL 384808 (11th Cir. Oct. 27, 2022), the Eleventh Circuit(which has jurisdiction over federal cases originating in Alabama, Florida, and Georgia) used the estimated percentage of time an employee spends on a task as an additional factor relevant to this analysis.

In Brown, a customer service representative had a condition that caused severe nausea and vomiting. While on leave for her condition, she learned to manage her symptoms by spitting regularly into a cup. She assumed she could bring the spit cup into work because most of her job functions were performed in an administrative area. However, the company denied her accommodation request because of sanitation requirements for its production area where she performed roughly 20% of her work. She filed suit under the Americans with Disabilities Act claiming the company unlawfully refused to provide her with a reasonable accommodation.

The Brown opinion affirmed a jury verdict against the employer because reasonable jurors could find the employee’s physical presence in the production area was not an essential function of her job. This conclusion was based on the following factors:

1. Her position was primarily clerical and unrelated to production.
2. She spent no more than 20% of her time in the production area.
3. Her job description did not list being in the production area among the job’s “Essential Duties and Responsibilities.”
4. The customer service team had a system where production area duties could be shared.
5. She could still do the job’s essential functions, including those normally done in the production area, from her desk in the administrative area.

Considering these factors, her production area duties were deemed “not essential.” Therefore, the Brown Court determined that the employer’s denial of her requested spit cut accommodation violated the ADA.

The Brown case emphasizes the need for a clear understanding of what functions are essential to a particular job. In the Eleventh Circuit, the following criteria may assist in this process:

1. An “essential” function should relate to the nature of the role. For example, work in administrative areas may be an essential job function for someone in a clerical role.
2. An “essential” function often comprises a significant portion of the employee’s workload. Per Brown, a task that only takes up 20% of an employee’s time may not be essential.
3. The job description should clearly list the functions considered to be essential.

Depending on the circumstances, an employer who receives a disability accommodation request may need to consider (1) whether there are alternate employees who could swap duties with this employee to make an accommodation possible, and (2) whether there is a practical way for the employee to perform this function under different circumstances conducive to the requested accommodation.

The interactive process in ADA cases can be challenging. Buchanan’s team of labor and employment attorneys monitor regulatory and judicial updates in this area and can assist employers in working through the steps of the reasonable accommodation process, including the determination of whether a particular job function qualifies as “essential.”