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Does no good deed go unpunished? December 8, 2006 Excerpted from Arizona Employment Law Letter, written by attorneys at the law firm Lewis and Roca LLP Q: We have an employee, Stephanie, who is a nurse at one of our hospitals. Her rotating shift is an essential function of her job. Because it's so difficult to find nurses who are willing to work the night shift, the only way the hospital can support the shift is by requiring them to rotate. For the last eight weeks, however, we have allowed Stephanie to work a straight day shift. We did that because her doctor reported that she was experiencing fatigue-induced seizures. Her doctor anticipated that if she just worked a straight day shift for a few weeks, she should be able to get the necessary rest to overcome her medical situation. I approached Stephanie today about changing back to the rotating shift. She told me that she believes her seizures are an Americans with Disabilities Act (ADA) disability and the fact that she has been able to work a straight shift for the last eight weeks demonstrates that the rotating shift isn't an essential function of her job. Is she right? A: Many courts that have addressed this issue have refused to punish employers for being more generous, or more accommodating, than the ADA would otherwise require. Assuming the rotating shift is indeed an essential job function, you could have refused to change her shift from the very beginning and instead placed her on an unpaid leave of absence as an accommodation. The fact that you went out of your way to help her continue working — by letting her out of an essential function on a temporary basis — shouldn't affect the fact that the function is still essential. On the other hand, some courts have also indicated that allowing an employee to avoid performing an essential job function can undermine the argument that the function was essential to begin with. In such a case, the employer could be required to allow the employee to continue working on a permanent basis without performing the essential job duty at issue. In short, this is a highly fact-intensive inquiry, and no employer wants to be the test case to see whether this good deed will be punished. So before you excuse someone from an essential function of her job, you should consult with your employment attorney. In dealing with Stephanie, you could take the position that the rotating shift is (and always was) an essential function, but there is some risk that a court may disagree. Copyright 2006 M. Lee Smith Publishers LLC. ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.
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