Is driving an "essential function of the job" for your road warriors?

If your employee isn't a professional driver but spends a lot of time on the road, how "essential" a job function is driving for ADA purposes? Is driving "essential" at all?

Man Driving.flickrCC.MatthewWJackson
"Seriously? I spend 40 hours a week in my car, and you say driving may not be 'essential' to my job?"

In what I consider to be a very significant result under the Americans with Disabilities Act, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit recently ruled that driving might not be an ADA "essential function" in jobs that require a lot of driving but primarily exist for other reasons. (Hat tip to Jill Stricklin for alerting me to the decision when it came out.)

This is a big deal. Under the ADA, if driving is an essential function, then the employer can insist that the employee do it, with or without a reasonable accommodation. If driving is not an essential function, then the employer cannot. In other words, if driving is not an essential function, the employer would be responsible for getting that function handled in some other way -- including assigning the function to someone else or forgoing it entirely.

(Transportation employers should be able to continue to safely assume that "driving" is an essential function of a driver's job.)

The case is Stephenson v. Pfizer, Inc., which involved a pharmaceutical rep. The pharma rep exists primarily to make presentations to physicians and encourage them to prescribe drugs made by the rep's company. However, to make those presentations, the rep has to get to the doctors' places of business; hence, the need to drive.

Employers with "road warrior" employees should review and, if necessary, update existing job descriptions to make sure that they include driving and accurately reflect employees' other job duties. They should also be very cautious about denying a "driving" accommodation.

Plaintiff Whitney Stephenson was a senior, apparently stellar Pfizer rep serving the area of Winston-Salem, North Carolina (my town! yay!). She developed an eye condition that significantly impaired her vision and made her unable to drive, but she could apparently continue to ably perform the other functions  of her job. She requested the reasonable accommodation of a driver, and the company reportedly refused it, worried about the precedent that it would be setting. "Not everyone is a Whitney Stephenson," her boss allegedly told her. The company did offer her some non-driving positions, which she declined.

Ms. Stephenson sued, and in 2014, a U.S. District Court Judge awarded summary judgment to Pfizer. But on appeal, the Fourth Circuit panel reversed, and said that a jury would have to decide whether driving was an essential function of Ms. Stephenson's job. Although Ms. Stephenson had a written job description, it did not include "driving" as an essential function. Instead, the description focused on education, sales ability, pharmaceutical knowledge, and other traits unrelated to the ability to drive.

Another issue -- to be resolved at trial, presumably -- is whether Pfizer has to hire a driver for Ms. Stephenson, or whether hiring a driver is an "unreasonable" accommodation that Pfizer doesn't have to make.

Woman Driving.flickrCC.ForrestO
"Yes, I have to drive, but that's not why they hired me. They hired me because I can sell stuff."

Some heavy hitters filed briefs in support of the parties, including the Equal Employment Opportunity Commission, a number of disability-rights groups, and the National Employment Lawyers Association, on behalf of Ms. Stephenson; and the U.S. Chamber of Commerce, the Equal Employment Advisory Council, and the National Federation of Independent Business Small Business Legal Center, on behalf of Pfizer.

With this much effort put into arguing both sides of the "essential function" issue, it's a shame that the panel dealt with it through an unpublished, per curiam decision. But whatcha gonna do?

In happier ADA news, congratulations to my law partner, Jon Yarbrough, who recently got a Fourth Circuit panel decision saying that there is no "mixed motive" claim under the ADA. (This was after Jon won the case at trial.) The Fourth Circuit joins the Sixth and Seventh circuits on this issue.

The Stephenson decision could have significant implications for employers of sales representatives, account executives, merchandisers, home health care providers, cable TV technicians, and others whose raison d'être may not be driving but who are required to do significant driving as part of their jobs. If sounds as if the panel might have upheld the summary judgment decision if Pfizer had included "driving" as an essential function -- or maybe as any function -- in its job description. Employers with "road warrior" employees should review and, if necessary, update existing job descriptions to make sure that they include driving and accurately reflect employees' other job duties.

Businessman on Scooter.flickrCC.JochenFrey
"I'm a road warrior - hear me roar! Vroom-vroom!"

Finally, employers should be very cautious before denying a "driving" accommodation. In 2014, the U.S. Court of Appeals for the Fifth Circuit reversed summary judgment for a home health care provider that had refused to provide a driver for a nurse who may have been a team leader (whether she was a team leader or a rank-and-file nurse was disputed by the parties). In EEOC v. LHC Group, Inc., the court ruled that driving was clearly an essential function of the rank-and-file position but not necessarily the team leader position. Since the nurse's status as a team leader was in dispute, a jury would have to decide that, as well as whether driving was an essential function of the team leader position.

Image Credits: From flickr, Creative Commons license: Male driver by Matthew W. Jackson; female driver by Forrest O; road warrior by Jochem Frey.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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