On September 23, 2022, a Costco store could be seen in Monterey Park, California. A jury should decide whether the employer failed to offer an adjustment for an employee who has a disability, as per a ruling by a federal district court.
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A federal district court in Oregon decided on Aug. 8 in Braa v. Costco Wholesale Corp. that a jury should resolve whether Costco’s demand for the cashier to be available to work five days per week disregarded her pain and migraines. The cashier’s doctor had restricted her from working more than four days a week due to her impairments. Costco believed that since the cashier worked in a small department, part-time employees like her were supposed to be available to work a five-day week or an eight-hour shift if needed. She declined Costco’s offer to be reassigned, believing she couldn’t manage the strenuous tasks of the other positions, and was put on leave. Subsequently, Costco decided she could not perform the essential functions of her job and fired her. The court stated that the case depended on whether being accessible to work five days a week was an essential function of the cashier’s job. If not, the court maintained, she “showed that her requested four-day scheduling accommodation, which would have allowed her to stay in her same position, was reasonable.” Since there was conflicting evidence, a jury had to determine, the court concluded.
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The U.S. Equal Employment Opportunity Commission provides guidance that employers must give reasonable accommodations to those with disabilities who qualify, so long as it does not cause undue hardship.
The guidance explains that “qualified individuals” are those who can complete the job’s necessary tasks. Particularly, the EEOC guidance states that an employer is not expected to erase a required function to accommodate an employee. “Essential” means that the duty is “central” to the position.
The court of Costco noted that a job role is usually considered “essential” if one of three criteria is fulfilled: the role is created to perform a specific task; there is a limited amount of individuals who can execute it; or it is a “highly specialized” task and the employee is hired solely for it.
In certain cases, courts have come to the conclusion that attendance and scheduling are fundamental duties of a job, which can clash with a request for accommodation as was seen in the Costco case.
The 9th Circuit Court, which has jurisdiction over nine U.S. states, used the example of a neo-natal nurse as an illustration of an essential employee with a job requiring a “regular predictable presence to perform specialized, life-saving work in a hospital context”.
HR experts should be aware that, as stated by the Costco ruling, having written job descriptions can be useful in indicating that a certain job requirement is fundamental. In the case of the nurse, her job description specified attendance and punctuality as necessary duties and claimed that the employee should “exhibit the particular characteristics linked with attendance and punctuality” to “demonstrate performance,” as the 9th Circuit noted. On the other hand, Costco was not able to “point to any written document to validate its ‘policy’ that part-time staff must be available to work five days a week,” the court stated.
Ensuring that essential functions in a job are in accordance with the actual roles of the job is something that HR can do to evaluate accommodation requests appropriately — a point that was highlighted by the Costco court. It is also important to consider the amount of time spent performing the function and the consequences of not requiring an employee to do it when determining if the job function is essential.
The court noticed that there were no indications that allowing the cashier to have a reduced schedule would lead to dire results for Costco, for instance, forcing them to shut down certain activities or have to pay overtime to other staff.
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