ADA Documentation: Implement Best Practices and Avoid Mistakes

By Jaclyn L. Kugell, Esq.

Managing Partner
Morgan, Brown & Joy, LLP

By Jaclyn L. McNeely, Esq.

Associate
Morgan, Brown & Joy, LLP

The principles of reasonable accommodation and undue hardship have been the subject of frequent litigation since enactment of the Americans with Disabilities Act (ADA) in 1990, and documentation is typically critical to proving ADA compliance.

To identify what documentation an employer should request and maintain, look to the definition of “qualified individual.” One of the first questions that arises is, what are the “essential functions” of the job? To answer this, an employer should maintain written job descriptions that clearly delineate all physical and mental requirements of each job. In doing so, employers should consider which functions are truly “essential,” mindful that they may someday be challenged in court.

For example, in EEOC v. LHC Group, Inc. d/b/a Gulf Coast Homecare, the Fifth Circuit Appeals Court reversed summary judgment in part because it was unclear whether driving was an essential function for a field nurse “team leader.”¹

While driving was an essential function of the employer’s field nurse position, the court determined that there was a genuine issue of fact as to whether it was necessary for the team leader. The court specifically called out the employer’s job description in its analysis, stating that “contrary to the written position description, team leaders in practice drove far less frequently than did field nurses… many team leader tasks were performed in the branch office.” Thus, while job descriptions are a useful evidentiary tool, it is important to review each position individually to determine which functions are truly essential to that position and ensure the job description is up to date, complete, and accurate.

Regularly reviewing job descriptions is as important as having them. Further it is dangerous to assume that certain functions are required in any or every job and therefore need not be stated or that these “obvious” functions will be “read in.” For example, employers often assume attendance is such an obvious essential function of any job that it need not be stated. In McMillan v. City of New York (2d Cir., 2013) and Crankshaw v. City of Elgin (W.D. Texas, 2019), both employers unsuccessfully attempted to rely on an unstated “understanding” that attendance is an essential job function.

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