Being on Call 24/7 an Essential Job Function Under ADA, 5th Circuit Rules

Author: Michael Cardman, XpertHR Legal Editor

April 25, 2019

The ability to be on call 24 hours a day, seven days a week was an essential job function under the Americans with Disabilities Act (ADA) for a law enforcement cadet, a federal appellate court has ruled.

The 5th Circuit Court of Appeals - which covers Louisiana, Mississippi and Texas - recently affirmed a Louisiana district court's 2018 ruling in Abshire v. Louisiana Department of Wildlife and Fisheries.

The Abshire ruling illustrates the importance of including essential job functions in written job descriptions. Although they are not always an air-tight defense against disability discrimination claims, they are considered as evidence of what is an essential job function under the ADA.

To be protected by the ADA, a person must not only have a disability that substantially limits a major life activity but also be qualified for the position in question. To be qualified under the ADA:

  • First, the individual must meet the necessary prerequisites for the job; and
  • Second, if the individual meets all of the job prerequisites except for those that he or she cannot meet because of a disability, the employer must determine whether a reasonable accommodation would permit the individual to perform the essential job functions.

The plaintiff in the Abshire case was a Marine veteran diagnosed with Post Traumatic Stress Disorder. The Louisiana Department of Wildlife and Fisheries hired him in 2013 as a Wildlife Enforcement Cadet. Because the plaintiff acknowledged he could not meet the requirement listed in the job posting that the position was subject to call 24 hours a day, seven days a week - whether with or without a reasonable accommodation - the case revolved around whether 24/7 availability was an essential job function.

The court ruled that it was, noting that:

  • The job posting for which the plaintiff submitted his employment application stated that the position is subject to call 24 hours a day, seven days a week;
  • Not requiring law enforcement agents to be available at all times could hinder search and rescue missions, criminal investigations and criminal apprehensions; and
  • It is common practice for law enforcement agents to spend a great deal of time preparing citations and investigative reports while on patrol, and to facilitate civil or criminal proceedings.