Is “driving” listed as a requirement on your job descriptions?

by Laura Pokrzywa

If you have employees who are frequently on the road for the company (sales reps, traveling technicians, executives, etc.), you should take heed from a recent court case (Stephenson v. Pfizer, Inc.). The U.S. Court of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia) recently ruled that driving is not necessarily an “essential function” in jobs that require a lot of driving but primarily exist for other reasons.

Why is that a big deal? Because, in order to be considered qualified for a job, an employee must be able to perform all the essential functions of the job, with or without a reasonable accommodation. In other words, if one of your employees who spends a lot of time driving from one customer site to another develops a disability that makes driving difficult or impossible – but they are still able to perform the essential functions of their job (i.e., selling, repairing, etc.), then, under the Americans with Disabilities Act (ADA), they are not disqualified from that role simply because they can no longer drive. That means it is up to the employer to find another way to get that employee to and from those customer sites. If, on the other hand, driving IS considered an essential function of their job, then your employee would no longer qualify for their role UNLESS a reasonable accommodation could be found.

That is what happened to a successful pharmaceutical rep who worked for Pfizer, Inc. for close to 30 years. In 2008, Whitney Stephenson developed an eye condition that would, by 2011, render her legally blind and unable to drive. But she had spent up to 90 percent of her time driving to doctors’ offices, selling pharmaceutical products as one of Pfizer’s top producers. When her eye sight deteriorated, Stephenson requested a full-time driver be provided so that she could continue working in her role. Pfizer determined that request was unreasonable, based on the assumption that driving was essential to her role, and offered her other non-traveling positions within the company. On April 25, 2012, Stephenson filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). The legal battles that followed took the case all the way to the Fourth Circuit Court earlier this month where a three-judge panel decided the case needs to go to a jury to decide whether driving is an essential function of her job.

Pfizer’s job descriptions did not include driving as an essential function of the sales rep’s job. If they had, they might have spared themselves a lot of grief. So, check your job descriptions. Do they accurately list the functions that are required for the position?

To help you determine which functions are essential, here is guidance taken directly from the EEOC’s website:

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

For more information about the ADA and how to handle reasonable accommodations, join us for a FREE webinar Thursday, March 31st at 11:00 AM EST. We will cover the basics of ADA compliance, including reasonable accommodations and the intersection of the ADA and FMLA, all in just about 30 minutes!

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