Attention employers. Do you have a written job description covering each position in your workplace? Are they compliant with the Americans Disability act? If you get sued for disability discrimination, will those job descriptions hold up in court? Let’s review why you need to know the answers to these questions.

There is a federal law named the Americans With Disabilities Act (ADA). If your cooperative or management company employs at least 15 full-time employees, this law applies to you. You should also know that virtually all the states have their own laws protecting employees from disability discrimination in the workplace. For instance, Michigan only requires that an employer have one employee before the law applies, not 15.

In general, these laws protect qualified individuals with disabilities from employment discrimination. Under the ADA and many state laws, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. Note that the impairment must be substantial.

An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation. This means the employee must be qualified to do the job functions he or she is being hired to perform. You don’t have to hire anyone who is not qualified to perform the necessary job functions. But the problem is, how does either the employer or the employee know all the job functions he or she is supposed to perform?

Now the employer may say: “That’s an easy question to answer. The manager just tells the employee what to do.” That might get you through some day-to-day operations, but it’s no defense to a lawsuit against the employer for disability discrimination. Or you might say, “Well all those job descriptions are put in our employee handbook and that’s good enough.” It’s not good enough.

To properly defend yourself, an employer should be able to look in a master file folder, or folder on the office computer, and find written job descriptions for each specific job at the cooperative. For instance, most cooperatives have maintenance employees. They may have a maintenance supervisor. They may have a maintenance staff. But do you have a specific written document entitled “Maintenance Supervisor, Job Description” or “Maintenance Staff, Job Description?” Cooperatives also have clerical and managerial employees. Do you have a specific written document entitled “Clerical Employee, Job Description” or “Office Manager, Job Description?” If you can’t lay your hands on any type of document like that, it’s going to be very hard for you to defend against a discrimination claim or lawsuit.

Every good job description has a section that defines “Essential Job Functions” and “Non-Essential Job Functions.” Essential functions are the basic job duties that an employee must be able to perform, with or without also offering reasonable accommodation. Nonessential job functions are those the employee doesn’t have to perform if he or she claims to have a disability. See why it’s important to distinguish between the two? If you fail to identify a specific job description as essential, then it will end up in the nonessential category. The law will then excuse a disabled employee from performing nonessential functions. So, it’s in the employer’s interest to specifically define only those few functions which are nonessential.

If the employer doesn’t have a job description and is sued for disability discrimination, then the employee is going to claim that many of his or her job functions are nonessential, and he or she should be excused from performing them while remaining employed. The employer’s lack of a well-written job description will come back to haunt the employer. But if the employer has a well-written job description that identifies the essential job functions of the employee, then such a document goes a long way toward helping to defend against such a claim.

If an employee files a charge with a state or federal administrative agency like the equal Employment Opportunity Commission or a state Department Of Civil Rights, a public interest civil rights organization, or actually retains an attorney and files a lawsuit, one of the first documents your attorney will ask for is a copy of all the job descriptions. See why this is so important? When faced with a charge or lawsuit there will be many issues and defenses discussed but a well-written employee job description shouldn’t be missing in action.

So, are your job descriptions “missing in action”? Are they properly drafted to define essential and nonessential functions? If you can’t lay your hands on them right now or they’re not properly drafted, the employer may still have time to get those drafted and approved. To be forewarned is to be forearmed.