involving the propriety of an essential function, an employer’s determination of what is essential is given substantial deference. Sometimes overlooked in listing the essential functions is the ability to work more than 40 hours per week, even if it only arises occasionally. In addition, most courts have agreed with employers that have included “regular attendance” or some similar requirement in the essential functions of the job. However, it should be noted that the Equal Opportunity Commission, tasked with enforcing the ADA, takes the opposite position on regular attendance as an essential function.


One further factor to consider for


inclusion in the essential functions is a brief description of the safety requirements applicable to the job in question. For example, circumstances can arise where an employee’s disability prevents him or her from safely preforming his or her job duties. In one recent case, the federal Fourth Circuit


Technical Questions?


Ask the Experts


Our panel of experts is here to help.


All posted questions are anonymous and made available to all Institute members.


FOR MEMBERS ONLY


A member service from... the Investment Casting Institute


Visit our website for more details www.investmentcasting.org


May 2021 ❘ 23 ®


Court of Appeals ruled that the ADA provided no protection to an employee, who because of a disability, was unable to comply with a job safety requirement that all employees wear steel-toed shoes. The Court ruled that the employee was not a “qualified individual” because she


was unable to comply with a valid safety requirement. This case underscores the need to have current and inclusive job descriptions with a thorough discussion of the essential functions, including valid safety requirements necessary to perform the job safely.


About the Author Richard D. Alaniz is a partner at Alaniz Law & Associates, PLLC, a labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over forty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Rick is a prolific writer on labor and employment law and conducts frequent seminars to


client companies and trade associations across the country. Questions about this article, or requests to subscribe to receive Rick’s monthly articles, can be addressed to Rick at (281) 833-2200 or ralaniz@alaniz-law.com.


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28