Are your job descriptions fact or fiction?
Workplace Safety Regulatory Alert
Job descriptions exist for many reasons, and one of them is to list the job’s essential functions and what is generally expected of the individual in the job. Such information should be accurate and truly reflect the facts of the job. If the information does not match the actual job duties, relying on it could be the basis of a negative court outcome.
Case in point
Jane Employee worked as a certified nursing assistant (CNA) when she tore her right rotator cuff. After two surgeries, she was given permanent lifting restrictions of not more than 20 pounds above the shoulder, 30 pounds to shoulder level, not carrying more than 35 pounds, and not pushing or pulling more than 50 pounds. When she returned to work, she was transferred to a transportation aide, which involved less lifting. Thereafter, however, she was assigned to work as a CNA every other weekend.
The company was purchased and, if the employees wanted to retain their jobs, they needed to submit job applications. Jane did so, and during the hiring process, she disclosed her lifting restrictions and the reason behind them.
The company’s job description for CNAs included the ability to lift 50 pounds, carry objects up to 70 pounds, and push/pull objects of up to 100 pounds. The transportation aide job description indicated that the job required lifting and pushing/pulling of up to 50 pounds, carrying up to 25 pounds, and lifting residents into and out of vehicles.
When a new nursing director came on board, Jane was asked to provide a doctor’s note stating that she could perform the physical requirements of the transportation aide position in order to retain her job, because “no one [at this company] could work with restrictions.”
Jane understood this to mean that she was terminated. She followed up with a lawsuit, claiming that she was discriminated against based on her disability. She also claimed she was able to perform the functions of the job before and after her injury, as well as before and after the company was purchased.
The employer, on the other hand, tried to argue that Jane did not have a disability, that she could not perform the essential job functions with or without reasonable accommodation, and that Jane did not provide notice of her lifting restriction.
Job descriptions didn’t match “reality”
The employer lost on all counts. Part of the problem, was that the official job descriptions, upon which the company placed its argument, did not tell the whole story. Both Jane and her coworkers testified that Jane was able to perform the functions, and that mechanical lifts and other equipment was used, so Jane never had to go beyond her restrictions.
Under the Americans with Disabilities Act (ADA), a lifting restriction can be a disability, and the court indicated that Jane’s was. It also had enough evidence that Jane had informed the employer of her restrictions. At one point in the proceedings, a company administrator testified that she told Jane that Jane had been violating her lifting restrictions! The argument that it knew only of a “lifting issue” would have been enough, anyway.
Some things you can do to head off job description issues such as the one in this case:
Make sure your job descriptions accurately reflect the reality of the job duties. If employees don’t actually need to lift 50 pounds, don’t include that in the description. Reviewing the descriptions every now and then can help capture the advances in equipment or policies or work duties.
Become familiar with the idea that the concept of a disability is very broad – lifting restrictions can easily be a disability.
Avoid having a policy prohibiting employees from having restrictions, as this cuts at the very heart of the ADA – that employers are to provide reasonable accommodations that will allow employees to perform the job’s essential functions.
Crain v. Roseville Rehabilitation & Health Care, C.D. IL, No 4:14-cv-04079, March 21, 2017
Safety manager’s role in job descriptions
While your HR staff may ultimately create and maintain job descriptions, it’s likely that as a safety professional you’ll be involved to some extent. At the very least, if workers are coming back to a light-duty position from a work-related or other injury, knowing the reality of what’s going on is of utmost importance. If a job description says the job requires only lifting 10 pounds, and the employee’s restriction from the doctor says the employee cannot lift over 20 pounds, it may look fine to allow the worker back to full duty. But, what if the lift-assist equipment hasn’t worked for months or is seldom available and workers routinely lift 40 pounds? Then that worker could be further injured.
On the other hand, what if an injured worker’s restrictions say he can’t lift more than 20 pounds, but his job description says an essential function is lifting 40 pounds? If that truly is part of the job, then light duty work might be a better option. But, as the case illustrates, what if the workers never actually lift more than 10 pounds because they have lift-assist equipment? Then you’re keeping a worker from returning to duty as quickly as possible, which is usually not a good thing for the worker or employer.
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