EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Essential Functions/Disability-Related Inquiries and Medical Examinations of Applicants
This is in response to your letter of May 17, 2004, in which you asked about the accuracy of statements made in a variety of publications about the employment provisions of the Americans with Disabilities Act (ADA). Rather than address each publication you submitted, I will provide information on the various topics raised in your letter.
Essential and Marginal Functions
Several documents you submitted explain what the term "essential function" means and what factors an employer should consider in determining whether a specific function is "essential." The information on these pages is taken from the ADA regulations and appendix [29 C.F.R. §1630.2(n)], as well as the EEOC's Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (ADA Technical Assistance Manual)..
One factor is the amount of time spent performing that function. One publication suggests that if an employee spends at least 10% of her time performing a function, then it would likely be considered "essential." It is not clear that a function is "essential" based solely on the fact that an employee spends 10% of her time performing it. While an employer may find it helpful to follow this publication's suggestion, it would be prudent to examine the other factors listed in the ADA regulations and appendix (as well as the ADA Technical Assistance Manual) for determining if a function is "essential," such as whether the function is highly specialized or only a limited number of employees are available to perform it. It is possible that a function performed 10% of the time is still a marginal function based on the other factors. It is also possible that a function performed 2% of the time or less may still be "essential" because of the serious consequences that would occur if the employee failed to perform it.
An employer must show that a specific function is "essential" because the employer is in the best position to make this determination, based on the factors and considerations listed in the EEOC documents mentioned above.
There is no EEOC-mandated "Essential Functions Form" because the ADA does not require use of one. However, it is good practice for employers to ensure that all job applicants understand the job requirements, including the nature of the "essential functions." In addition, employers may ask applicants about their ability to perform the essential functions of a job, with or without a reasonable accommodation.
One publication you sent makes the statement that "a hiring decision cannot be based upon an applicant's inability to perform a marginal function." This statement is true only if the applicant has a disability and is unable to perform the marginal function because of the disability. The ADA defines a "qualified" person with a disability as one who can perform the essential functions of the position, with or without reasonable accommodation. If a person with a disability is unable to perform a marginal function, then the employer cannot use that fact to disqualify the individual. Rather, the employer would have to reassign the marginal function as a reasonable accommodation. The employer, however, may be able to substitute another marginal function that the individual would be able to perform.
The ADA does not require employers to have job descriptions, but if employers choose to use them then they should be for all jobs, not just those held by persons with disabilities. An employer may, but is not required to, identify the essential and marginal functions in a job description. If employers use job descriptions they can be evidence of what the employer considers to be the essential functions of a specific position, but they are not the only possible evidence. Other critical pieces of evidence can include a current or former employee's actual job performance. The relevance of a job description in determining the essential functions of a position may depend upon when it was drafted and whether changes have been made to the job since then.
One publication you sent recommends that "other duties as assigned" should not be listed as an essential function in a job description. Many employers wish to include this provision in order to indicate that job duties may change. An employer may not have any idea at the time it drafts the job description what those other duties may be, but wants to ensure that applicants and employees understand that new duties could be assigned in the future. Some of the new duties may be essential functions and others may not. Thus, while an employer may list "other duties as assigned" it would be better not to designate it as an essential or marginal function.
Disability-Related Inquiries and Medical Examinations
The ADA prohibits employers from asking "disability-related" questions - i.e., questions that are likely to elicit whether an individual has a disability - and requiring medical examinations prior to making a job offer. During the pre-offer stage, interviewers may ask questions about an applicant's ability to perform both essential and marginal job functions.
After a job offer, employers may require all selected candidates to answer disability-related questions and/or take a medical examination. While it would be prudent that these questions and/or medical examinations relate to the essential functions of the job, the ADA does not limit employers in this manner. The statute only requires that the same questions and/or medical examination be given to all applicants entering the same job category. Based on the results, an employer may single out specific individuals for medically-relevant follow-up questions and/or examinations.
I am enclosing three EEOC publications that may be of interest: (1) the ADA regulations and appendix [29 C.F.R. §1630.2(n)], (2) the Enforcement Guidance on Preemployment Disability-Related Inquiries and Medical Examinations, and (3) the Fact Sheet on the ADA and Job Applicants. You may obtain a free copy of the EEOC's ADA Technical Assistance Manual by calling 1-800-669-3362 (phone) or 1-800-800-3302 (TDD).
This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. I hope this information is helpful.
Senior Attorney Advisor
Office of Legal Counsel
This page was last modified on April 27, 2007.
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