California Employment Law

I commonly recommend employers have job descriptions for each position. One reason for ensuring accurate job descriptions exist is to make it easier to determine what, if any, reasonable accommodations can be made for employees with disabilities. An employee does not qualify as “disabled” within the meaning of the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA) unless the employee can perform the essential functions of the job with or without a reasonable accommodation.

But what exactly are the “essential functions of the job?” The EEOC provides the following guidance:

How Are Essential Functions Determined?

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

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

• whether the reason the position exists is to perform that function,
• the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
• 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:

• the actual work experience of present or past employees in the job,
• the time spent performing a function,
• the consequences of not requiring that an employee perform a function, and
• the terms of a collective bargaining agreement.

From The ADA: Your Reponsibilities as an Employer, Addendum available at http://www.eeoc.gov/facts/ada17.html

I typically recommend employers review the job descriptions, including the essential functions of the job, with the employee periodically to ensure the job description accurately reflects the work the employee is performing.

Original article by Robert E. Nuddleman of Phillip J. Griego & Associates

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