What if I can’t do an essential part of my job?

What makes a duty “essential”?

Essential functions are “the fundamental job duties” of the position, not its “marginal functions” (29 C.F.R. § 1630.2(n)(1)). Under the State regulation, a function is essential “if not performing that function would fundamentally change the job,” and whether it is essential “is a factual question to be resolved by all relevant evidence” (9 NYCRR 466.11(f)(3)). The evidence includes:

• the employer’s judgment, especially a written job description prepared before the job was advertised (42 U.S.C. § 12111(8); 9 NYCRR 466.11(f)(3)(i));
• how much time is spent on the task and how often others in the job actually do it (29 C.F.R. § 1630.2(n)(3)(iii); 466.11(f)(3)(ii));
• how many other employees could take the task over (466.11(f)(3)(iii));
• what actually happens to the business if you do not do it (1630.2(n)(3)(iv); 466.11(f)(3)(iv)); and
• any union contract (1630.2(n)(3)(v); 466.11(f)(3)(v)).

A task can be essential even if it takes little time, when the job exists to do it or you were hired for a special skill it requires (29 C.F.R. § 1630.2(n)(2); 9 NYCRR 466.11(f)(4)).

Is the job description the last word?

No. Courts look at “both the employer’s description of a job and how the job is actually performed in practice.” Arriving at a fixed time is normally essential, but “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment” (McMillan v. City of New York, 711 F.3d 120, 126–27 (2d Cir. 2013), vacating summary judgment for the employer where the employer had long tolerated the caseworker’s late arrivals). And where a supervisor called a clerk typist’s archiving work “rather minimal” and others shared it, a jury could find it was not essential (Tafolla v. Heilig, 80 F.4th 111, 119–20 (2d Cir. 2023), vacating summary judgment for the employer).

But the employer’s judgment gets real weight. Courts give it “considerable deference,” and a pharmacist who could not give the immunizations his employer had made part of the job lost a jury verdict on appeal (Stevens v. Rite Aid Corp., 851 F.3d 224, 229–30 (2d Cir. 2017), reversing the denial of judgment for the employer).

What happens to the duties I cannot do?

If they are not essential, they can be reassigned. The State regulation is direct: duties you cannot perform because of the disability, and that are not essential, “must not be required” of you (9 NYCRR 466.11(f)(7)). Job restructuring is a listed accommodation under all three laws (42 U.S.C. § 12111(9)(B); Exec. Law § 292(21-e); 466.11(a)(2)).

If a duty is essential, an accommodation can change how you do it, with equipment, a different schedule, or a different method, but it cannot remove it: “[a] reasonable accommodation can never involve the elimination of an essential function of a job” (Stevens, 851 F.3d at 230).

Do I have to be unable to do the job before I can ask?

No. Under the ADA, an employee who can do the essential functions without help can still be entitled to an accommodation, for example one that reduces disability-related pain (Tudor v. Whitehall Cent. Sch. Dist., 132 F.4th 242, 246–48 (2d Cir. 2025), vacating summary judgment for the employer).

What if no accommodation would let me do my own job?

• Reassignment to a vacant position. Moving you to a vacant job you are qualified for is a listed accommodation (42 U.S.C. § 12111(9)(B); 9 NYCRR 466.11(a)(2)). An employer does not have to create a new position (466.11(f)(6); Graves v. Finch Pruyn & Co., 457 F.3d 181, 187 (2d Cir. 2006)). But a filled assignment may still be possible if the employer routinely moves people around: a benefits-fund worker who asked to return to the territory he used to cover, now handled by a colleague, could go to trial on that request if the employer regularly shifted coordinators between areas (Raymond v. 1199SEIU Nat’l Benefit Fund, 184 F.4th 42, 57 (2d Cir. 2026), vacating summary judgment for the employer).
• Time to recover. Under State law, a temporary disability is protected where you “will be able to satisfactorily perform the duties of the job after a reasonable accommodation in the form of a reasonable time for recovery” (9 NYCRR 466.11(i)(1)). Light duty, a changed schedule or time off may be required (466.11(i)(3)). See time off for your own condition.
• If you are pregnant. Under the federal Pregnant Workers Fairness Act you are still “qualified” even if you temporarily cannot do an essential function, as long as you could do it in the near future and the temporary inability can be reasonably accommodated (42 U.S.C. § 2000gg(6)).

Who has to prove what?

• Federal law. You must show you can do the essential functions with or without an accommodation. Your first burden on the accommodation is “not heavy”: it is enough to suggest a plausible accommodation whose costs do not clearly exceed its benefits, and the employer must then show undue hardship (McMillan, 711 F.3d at 127–28).
• City law. The burden is reversed. It is the employer’s affirmative defense that you “could not, with reasonable accommodation, satisfy the essential requisites of the job” (Admin. Code § 8-107(15)(b)), and the employer must prove undue hardship (§ 8-102).
• State law. The regulation says an employer’s performance standards “will not be second-guessed, so long as” they are applied equally to everyone in the same position (9 NYCRR 466.11(f)(2)). The statute excuses an accommodation that “can be demonstrated to impose an undue hardship” (Exec. Law § 296(3)(b)), but it does not say who must show it. The Court of Appeals has held that under State law you bear the burden of showing that, with a reasonable accommodation, you could do the essential functions of the job, and that, unlike the State law, the City law puts the burden on the employer to show that no reasonable accommodation was available or that the one proposed would be an undue hardship (Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 834–35 (2014)).

My employer says I must be 100% healed to come back. Is that allowed?

A rule like that skips the question the law asks, which is whether you can do the essential functions with an accommodation. In Raymond, the employer told a worker with a vein condition that he could return only “without restrictions,” and fired him when he could not; the Second Circuit sent his accommodation claim back for trial, holding that an employer’s response, “even one that reduces the employee’s workload or addresses some of the employee’s needs, is not necessarily a reasonable accommodation” (184 F.4th at 54–57). See also when the employer says its policy does not allow it.

What are the deadlines?

General periods only; when a period starts depends on the facts. An EEOC charge under the ADA or the PWFA is generally due within 300 days in New York. A State Human Rights Law claim can be brought in court within three years (CPLR 214(2)), or with the Division of Human Rights within three years for conduct on or after February 15, 2024 and one year before that (Exec. Law § 297(5)). A City Human Rights Law claim can be brought in court within three years (Admin. Code § 8-502(d)) or with the City Commission within one year (§ 8-109(e)). Filing with the Division or the Commission can bar a later lawsuit on the same claim (Exec. Law § 297(9); Admin. Code § 8-502(a)). See the deadlines on the main page.

What can I recover?

Lost pay, damages for emotional harm, and in many cases attorney’s fees. The State and City laws have no cap on damages; federal ADA damages for emotional harm and punitive damages are capped by employer size. See what you can recover.

What is unsettled?

• How much deference the employer’s judgment gets under State law after 2019. Stevens is a federal case. The 2019 direction to construe the State law liberally (Exec. Law § 300) and the City law’s burden on the employer (Admin. Code § 8-107(15)(b)) may lead to a different result on similar facts, but we are not aware of an appellate decision that has said so for essential functions.
• Filled positions. Raymond held only that a request to move into a colleague’s territory could go to trial if the employer’s practice was to shift people; what the employer’s practice actually was remains to be decided in that case.

What should I gather?

• Your written job description, and when it was written.
• Notes on how the job is actually done: how often each task comes up, who else does it, and what happened when it was covered by others.
• Your doctor’s description of what you can and cannot do, and for how long.
• Postings for vacant jobs you could do.
• Any policy requiring a full release before returning to work.