Infrequent Activities May Be Essential Job Functions, Rules Eleventh Circuit

The law giveth, and the law taketh away. The ADA Amendments Act of 2008 (ADAAA) makes it significantly more difficult for employers to defend ADA cases. But a recent ruling by the Eleventh Circuit Court of Appeals that even infrequent activities may constitute essential functions of an employee's position makes it clear that employers still have powerful defenses available to them.

First, some background. The ADAAA and its implementing regulations expand the definition of "disability," and even provide that the definition of "disability" should be "broadly" construed" to the "maximum extent permitted" by the terms of the ADA. Thus, the focus in ADA cases is now on whether discrimination occurred, rather than on whether the plaintiff has a disability.

One argument that discrimination did not occur is that the employee was unable to perform the essential functions of his job, with or without a reasonable accommodation. This defense stems from the definition of a "qualified individual," which is one of the elements a plaintiff must prove as part of his prima facie case. A "qualified individual" is "someone with a disability 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)).

The Eleventh Circuit Court of Appeals has long noted that "essential functions 'are the fundamental job duties of a position that an individual with a disability is actually required to perform.'" Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000) (per curiam)).

In Cremeens v. The City of Montgomery, Alabama, Case No. 10-14695 (11th Cir., May 31, 2011), the court tackled the question of how frequently an employee is required to perform such duties in order for them to be deemed "essential."

Cremeens was a fire investigator for the City of Montgomery who, because of his disability, was unable to engage in firefighting. The city argued that it was not required to retain Cremeens because he could not perform the "essential function" of firefighting. Cremeens argued that fire investigators rarely had to engage in firefighting and that this was not an essential function of the position.

To resolve this dispute, the court cited the ADA's implementing regulations, which provide a non-exclusive list of factors indicating whether a particular function is essential. They...