When you hire someone to be an outside sales rep you assume the way they are going to get from customer to customer is by driving, but do you specify that in your job description? Have you made that an essential function of the job? What about other jobs that require the employee moving from location to location, such as a visiting nurse, or a plumber or any number of other service types of employees? Not having driving as an essential function in those job descriptions could be problematic according to attorney Robin Shea of Constangy, Brooks, Smith & Prophete, LLP.
May not be essential
In her article, Is Driving An “Essential Function Of The Job” For Your Road Warriors?, Ms. Shea tells us about a Federal court decision where the court “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.” She says that this ruling is a BIG deal. Her reasoning on this is:
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.
The case involved a pharmaceutical sales rep who developed an eye infection and could not drive in order to visit the doctors necessary for her to do her job. She insisted that she could still sell, and do so effectively, she just could not drive. She asked for an accommodation of having a driver and the company declined. She sued claiming that “driving” was not in her job description. The case is now going to a jury trial.
Ms. Shea says that this “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.”
I know many, many companies this could have a major impact on. If you are in that position I recommend you take Ms. Shea’s advice that says “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.” I also advise you to read Ms. Shea’s analysis here. I would also put this on your radar to pay attention to.
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