Employer does not have burden of proof on issue of "essential function." Court follows 29 C.F.R. § 1630.2 test, which places considerable weight on employer's judgment about a job's essential functions. Here, being DOT-qualified to operate a truck considered an essential function because (1) company determined that even as a supervisor, plaintiff would occasionally need to operate equipment to avoid disruptions; (2) driving was a job qualification in description; (3) although the amount of time that supervisors spend driving trucks is small, daily exposure to company vehicles created a strong possibility that he might have to operate one; (4) company routinely made truck driving a requirement for supervisors.Riser v. QEP Energy, 776 F.3d 1191, 125 FEP 1687 (10th Cir. 2015).

Following suit, the Equal Employment Opportunity Commission (“EEOC”) revised its regulations to explain that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” 29 C.F.R.§ 1630.2(j)(1)(i). It is the EEOC’s stance that an “impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of determining whether an injury qualifies as a “disability” under the ADA.

The ADAAA regulations’ nine rules of construction of the term “substantially limits,” however, could be game changing to a court’s analysis of whether obesity is a disability under the ADA. See 29 C.F.R. § 1630.2(j)(1)(i)-(ix). These rules instruct, among other things: that “substantially limits” is to be construed broadly and is not a demanding standard; that the relevant comparison is to most people, not those similarly situated to the individual requesting the accommodation; the impairment need not prevent or severely restrict a major life activity (although not every impairment is a disability); and that the primary question is a whether discrimination occurred, not whether an impairment substantially limits a major life activity.

[9] EEOC Informal Discussion Letter (Mar. 5, 2020), available at https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250.[10] https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020.[11] EEOC Pandemic Guidance at § A.5 of “Job-Related and Consistent with Business Necessity.”[12] 29 C.F.R. § 1630.2(r).[13] EEOC Pandemic Guidance at § B.[14] EEOC Vaccine Guidance at § K.1.

Record did not support that decision-maker made the decision to impose counselling "based on a reasonable medical judgment." 29 C.F.R. § 1630.2(r). Court declines to define precisely what this regulation demands of employers, but holds at a minimum that "an employer must do more than follow its own lay intuition regarding the threat posed by an employee's potential medical condition."McCarthy v. Ameritech Pub., Inc., 763 F.3d 469, 124 FEP 6 (6th Cir. 2014). Panel: GIBBONS, Boggs, Siler. Claim on Appeal: ADEA and Title VII termination.

In particular, commuting to work under certain circumstances may have to be accommodated, if reasonable, such as where "the requested accommodation is a change to a workplace condition that is entirely within an employer's control and that would allow the employee to get to work and perform her job. See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii)." Genuine issue of material fact whether employer failed to carry out the interactive process, where plaintiff told manager that she could not always count on her grandson to drive her to work, and that such a solution was only a temporary one.

Grounds: Genuine dispute of material fact whether it is an essential function of the job of Mechanic's Helper to drive buses to field locations, such that possession of a commercial drivers license is an appropriate job requirement. Plaintiff with hearing and vision problems, not eligible for CDL, performed job for 12 years without CDL. Applying elements of 29 C.F.R. § 1630.2(n)(3), fact-finder could conclude that job description alone does not determine essential-function issue. Description states only that job description states that a Mechanic's Helper "may occasionally drive and deliver buses to various field locations."

42 U.S.C. § 12102(1). 29 C.F.R. § 1630.2(j)(3)(iii). 29 C.F.R. § 1630.2(j)(1)(ii).

This is due to a line of cases citing to Jacobson v. Massachusetts, in which the Supreme Court of the United States upheld a compulsory vaccination law in Massachusetts “as a valid exercise of the state’s police power, rejecting the plaintiff’s claim that a law requiring children to be vaccinated as a condition to attending public or private schools violated” constitutional protections.Regardless of what future laws or regulations might come, now is the time for employers to start examining their own vaccination policies according to the needs of their specific business or industry. The Sands Anderson employment team stands ready to help craft a robust vaccination policy for any employer attempting to navigate the changing landscape of employment law and regulation during a pandemic while simultaneously protecting the health of their employees and clients/customers alike.See 29 C.F.R. § 1630.2(r).See “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” EEOC, (referencing 29 C.F.R. § 1630.2(r); 29 C.F.R. pt. 1630 app. § 1630.2(r)).See Chmura v. Monongalia Health Sys., 2019 U.S. Dist. LEXIS 134373 1, 3-7 (N.D. W.Va. 2019).

A ‘direct threat’ is a significant risk that cannot be eliminated or reduced through reasonable accommodation. Id.; 29 C.F.R. §1630.2. This requires an individualized assessment of a person's present ability to safely perform essential job functions.