Employer Religious Accomodations

Being There Henry A. Azar, Jr. Assistant Director Federal Programs Branch Civil Division Department of Justice I. Introduction

fundamental job duties of the employment position." 29 C.F.R. § 1630.2(n)(1). The second regulation deals with what it means for a job function to be essential. According to the EEOC, a job function may be considered essential if, for example: (i) the position exists to perform that function; (ii) there are a limited number of employees available who can perform that function; and/or (iii) the function is highly specialized. 29 C.F.R. § 1630.2(n)(2). The third EEOC regulation provides a non exclusive list of relevant types of evidence to determine whether a particular function is essential. This list includes: (i) the employer's judgment; (ii) written job descriptions; (iii) the amount of time spent performing the function; (iv) the consequences of not requiring the employee to perform the function; (v) the terms of a collective bargaining agreement; (vi) the work experience of past incumbents in the job; and/or (vii) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3). Although not in the EEOC regulations, the EEOC has issued guidance taking the position that regular attendance at work is not an essential function because it is not a fundamental duty of a position. Rather, essential functions are duties to be performed. EEOC, E NFORCEMENT G UIDANCE : R EASONABLE A CCOMMODATION AND U NDUE H ARDSHIP U NDER THE A MERICANS WITH D ISABILITIES A CT , at n.65 (2002) (citing 29 C.F.R. § 1630.2(n)(1)) at www.eeoc.gov/policy/ /docs/accommodation.html). However, a number of circuits have ruled that physical presence in the workplace is an essential function of a job. See Mason , 353 F.3d at 1119 (citing Hypes v. First Commerce , 134 F.3d 721, 727 (5th Cir.1998) (per curiam) (loan analyst); Gantt v. Wilson Sporting Goods , 143 F.3d 1042, 1047 (6th Cir. 1998) (unspecified position at sporting goods plant); Tyndall v. Nat'l Educ. Centers , 31 F.3d 209, 213 (4th Cir. 1994) (teacher); Vande Zande v.

An oft-litigated issue under the Americans with Disabilities Act (ADA) (and its federal employment counterpart, the Rehabilitation Act) is whether an employee's regular attendance at work is an "essential function[ ]" of the employee's position, such that the employee's inability to be at work on a regular basis renders the employee not "qualified" under the ADA. See 42 U.S.C. §§ 12111(8), 12112(a). These issues may arise in cases in one of two contexts, or both simultaneously. Either the employee may seek to work from home as an accommodation or the employee may seek an indefinite absence from work as an accommodation. Some circuits have held that being at work is generally an essential function of a position. While such statements are helpful for employers, a defense against a disability claim will ultimately rise or fall on arguments that are based on the specific facts of the employee's position and the employer's response to any request for accommodation. In School Bd. of Nassau County v. Arline , the Supreme Court counseled that, in most cases, a district court's determination of whether a disabled person is otherwise qualified for a position will require an individualized inquiry. 480 U.S. 273, 287 (1987). Although a pat pro-employer position concerning attendance at work is easy to state, it is no substitute for providing a fact-specific argument as to why the defendant agency needed a particular employee in a specific position to be at work. II. Working at home One of the elements of a reasonable accommodation claim under the ADA is that an employee is qualified, with an accommodation, to perform the essential functions of the employee's job (or one that the employee seeks). E.g. , Mason v. Avaya Communications , 357 F.3d 1114,1119 (10th Cir. 2004). The first step in analyzing whether this element is met is to determine the essential functions of the job. There are three Equal Employment Opportunity Commission (EEOC) regulations that form this inquiry. The first defines essential functions as "the

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