Robert Vernon, Esq., Campbell Durrant, P.C. | December 2021
The pandemic has accelerated necessary technology improvements and, by extension, requests from employees to work from home. Whether work-from-home arrangements work in the public sector is debatable and certainly limited to job functions that do not require in-person engagement. These requests for work-from-home arrangements or remote work have highlighted the necessity for all employers to review, revise and update job descriptions.
Thorough, well-crafted and up-to-date job descriptions are a necessary tool for both the efficient management of a municipality and also for protections against liability from claims arising from the numerous statutes governing the employer/employee relationship. A well-written job description will provide managers guideposts on criteria by which they can evaluate their employees’ performance and provide the metric by which an employer can identify problem areas. Employers are encouraged to use an employee’s job description as the framework for an evaluation of performance. Is the employee performing all the functions included in the job description? Why or why not? What functions could be improved upon in the coming year? The job description gives both the employer and the employee a set of standards and expectations and assists managers in identifying specific shortfalls in an employee’s performance, and what criteria need improvement.
As a manner of shielding a municipality from liability against employer related claims, an accurate job description works here as well. My colleagues Joshua Hausman and Julie Aquino write in this update regarding the Pennsylvania Medical Marijuana Act, and the protections that law gives to employees. They note, however, that the law places several restrictions on what duties a medical marijuana user may perform, such as working in confined spaces, requiring Department of Transportation licensing and regulation, or in matters involving a public health or safety risk. It is important that an employer works with its labor counsel to identify those positions that involve such activities and include those activities—and that that the employer considers them to involve matters of public safety—and to include this fact within the job description. This eliminates any future question or interpretation of whether those truly are a function of the job should a situation involving medical marijuana arise.
Similarly, the Americans with Disabilities Act (the “ADA”) and its state law equivalent within the Pennsylvania Human Relations Act, prohibits an employer from discriminating against disabled individuals who are capable of performing the “essential functions” of a position with or without a reasonable accommodation. “Essential functions” mean functions that are not marginal to the job. An employer can deny employment to a disabled person who truly cannot perform an essential job function but cannot refuse employment because a disabled person is unable to perform a marginal job task. Reasonable accommodations can include the reassignment of “marginal” job functions, but employers are not required change the nature of the job itself by reassigning “essential” job functions. Regulations interpreting what may constitute an “essential function” have set forth seven factors to consider:
1) employer’s judgment,
2) written job descriptions,
3) time spent on the job performing the function,
4) consequences of not requiring a worker to perform the function,
5) terms of a collective-bargaining agreement,
6) work experience of past employees in the job, and
7) work experience of current employees in similar jobs.
Many of these factors rely on an established record of what is expected of the particular job. An up-to-date job description is an important tool to set forth the essential job functions that an employee must be able to perform with or without reasonable accommodations. It is best if job descriptions distinguish between essential and non-essential, or marginal, job functions.
What is the best practice to ensure that a job description is accurate and up to date? Have a conversation with your managers and employees. Review the existing job description closely to identify whether tasks are being performed, whether there are tasks that are not included in the description, and how much time each employee spends on a task. Do not limit the job description to tasks that are performed daily, or even weekly. Does a particular employee assist with a project that occurs once a year, such as a year-end audit or program sponsored by the municipality? This may be an essential function of the position. Also, avoid the trap of “other duties as assigned” when those duties are regularly performed or meant to be a permanent part of the position.
It may also be advisable to have the employees performing the job functions review and validate the accuracy of the job description. Such review could include a written statement codifying the employee’s review and the accuracy of the job description. This “belt and suspenders” approach will make it difficult, if not impossible, for an employee to dispute what functions are essential in future litigation.
Employers are advised to seek the assistance of their labor counsel in evaluating current job descriptions and developing a plan to revise and update those descriptions going forward. The attorneys at Campbell Durrant are available to help you with changes to job descriptions and the impact that those changes may have on employment statutes and collective bargaining agreements.