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Jury may decide if 5-day workweek was ‘essential’ for Costco cashier



Dive Brief:

  • A jury should determine whether Costco failed to accommodate a cashier’s pain and migraines by requiring her to be available to work five days per week, a federal district court in Oregon held Aug. 8 in Braa v. Costco Wholesale Corp.
  • Because of her impairments, the cashier’s doctor permanently restricted her from working more than four days a week, with limited hours and lifting, according to the court record. Costco allegedly determined that because she worked in a small department, part-time cashiers like her had to be available to work a five-day week or an eight-hour shift as needed. She rejected Costco’s offer to be reassigned — believing she could not complete the physically intensive tasks of the alternate positions — and was placed on leave, according to court documents. Costco ultimately concluded that she could not perform the essential functions of her job and fired her.
  • The cashier sued, alleging Costco violated the Americans with Disabilities Act. The case turned on whether being available to work five days a week was an essential function of the cashier’s job, the court said. If it wasn’t, then she “demonstrated that her requested four-day scheduling accommodation, which would have allowed her to stay in her same position, was reasonable,” it explained. Conflicting evidence requires a jury to decide, the court concluded.

Dive Insight:

The ADA requires employers to provide a reasonable accommodation to qualified individuals with a disability, unless doing so would create an undue hardship, guidance from the U.S. Equal Employment Opportunity Commission explains.

“Qualified individuals” are those who can perform the job’s essential functions, and “essential functions” are often key to deciding whether an accommodation is reasonable, the guidance indicates. In particular, an employer doesn’t have to eliminate an essential function to accommodate an employee, according to the guidance. “Essential” is just what the term implies — a duty “fundamental” to the position.

A job function is typically considered “essential” in three circumstances, the Costco court said: the reason the job exists is to perform the function; there are a limited number of employees who can perform it; or it is “highly specialized” and the employee is hired just to perform it.

It’s not unusual for attendance and scheduling requirements to conflict with an accommodation request, as they did in the Costco case; in some situations, courts have found they can be an essential function of the job.

The Costco court gave the example of a neo-natal nurse whose “regular predictable presence to perform specialized, life-saving work in a hospital context” was essential to her job, according to the 9th Circuit. That court covers Arizona, Alaska, California, Idaho, Oregon, Montana, Nevada, Washington and Hawaii.

HR professionals may want to note that, according to the Costco court, written job descriptions can help establish that a particular function is essential. In the nurse’s case, her job description listed attendance and punctuality as essential functions and stated that the employee must “demonstrate performance” by “exhibiting the defined characteristics associated with attendance and punctuality,” the 9th Circuit said. By contrast, Costco could not “point to any written document confirming its ‘policy’ that part-time employees must be available to work five days a week,” the court said.

HR can also ensure stated or perceived essential functions are in line with a job’s actual duties so an accommodation request can be properly evaluated — because evidence of whether a particular job function is essential may also include the amount of time spent performing the function and the consequences of not requiring an employee to perform it, the Costco court noted.

In the cashier’s case, there was no specific evidence that accommodating her limited availability would have negative consequences or cause Costco financial hardship, such as having to close certain operations or pay overtime to other employees, the court observed.

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