Factors to consider in determining if a function is essential include:

1.       Whether the reason the position exists is to perform that function,

2.       The number of other employees available to perform the function or among whom the

performance of the function can be distributed, and

3.       The degree of expertise or skill required to perform the function.           

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions.  Other kinds of evidence that EEOC will consider include:

1.       The actual work experience of present and past employees in the job

2.       The time spent performing a function

3.       The consequences of not requiring that an employee perform a function, and

4.       The terms of a collective bargaining agreement.

Recruitment

Pay

Hiring

Firing

Promotion

Job assignments

Training

Leave

Lay-off
            Benefits

All other employment related activities

The ADA also prohibits an employer from retaliating against an applicant or employee for asserting their rights under the ADA.  The Act makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.