The California Fair Employment and Housing Act (FEHA) requires employers to provide a reasonable accommodation for an individual with a disability to perform the essential functions of the job unless it would cause an undue hardship on the employer. Common reasonable accommodations include changing job duties for the position, allowing a leave of absence for medical care, modifying work schedules, or providing mechanical or electrical aids.
An employer may discharge an employee with a physical disability or medical condition where the employee, because of that physical disability or medical condition, “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (Gov. Code § 12940, subds. (a)(1), (a)(2).)
The issue in many reasonable accommodation and disability cases involves a dispute over what duties are “essential functions” of a job. This Friday’s Five sets forth five critical aspects of the analysis used to determine the essential functions of a position:
1. The function may be essential because the reason the position exists is to perform that function.
2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
3. The function may be highly specialized, so that the individual in the position is hired for his or her expertise or ability to perform the particular function.
4. Evidence reviewed in making the determination of whether a function is essential includes:
(A) The employer’s judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
5. Job descriptions are essential.
In making this determination the the job advertisement and the job description for the position at issue will also be reviewed. Job descriptions should be carefully drafted and updated on a regular basis so that they can be utilized in establishing the essential duties of a job in disability litigation.