Defining essential functions of job descriptions in California

How do we ensure that our job descriptions contain the true essential functions of the job? Why is this important? The short answer is that essential functions must be assessed when evaluating whether a disabled individual can perform a job; in the absence of a job description accurately listing the essential functions, an employer is left with less defense against a “failure to accommodate” claim or discrimination claim.

Job Description Creation: Defining the Essential Functions

California Government Code section 12926(f) states that a job function is essential if it meets one or more of the following:

• It constitutes the job’s fundamental duties
• The job exists to perform that function
• There are a limited number of employees to whom performance can be distributed
• It is a highly specialized function

“Knowing a job’s essential functions helps in creating job interview questions.” Michelle Lee Flores noted during a recent CER webinar. “In connection with a person with a disability, the job description assists in identifying the job’s physical and mental demands, and therefore identifying reasonable accommodations to enable a person with a disability to perform the essential functions.”

California law also explains what qualifies as possible evidence of the essential job functions. This is a non-exclusive list of possible evidence of essential functions, outlined for us by Tamara Devitt:

• “The employer’s judgment as to which functions are essential.”
• “Written job descriptions prepared before advertising or interviewing applicants for the job.” (These should be reviewed before a hiring decision is made.)
• “The amount of time spent performing the function.” Devitt noted that “generally, the more time you spend on it, the more likely it’s going to be considered an essential function of the job . . . [however] there could be a function that may not require as much time but is [still] critical.”
• “The consequences of not requiring the incumbent to perform the function. In other words, it’s so critical that there are dire consequences if somebody doesn’t perform that function.”
• “The terms of the collective bargaining agreement. A collective bargaining agreement often outlines a position description and how [each task] relates to other positions – that might be evidence that it’s an essential function.”
• “The work experiences of past incumbents in the job.”
• “The current work experience of incumbents in similar jobs.”

The EEOC has the same considerations when determining essential functions. Are your essential functions up-to-date on your job descriptions?

This information comes from the CER webinar “Make Job Descriptions ADA-Ready: California HR’s How-To for Defining Essential Functions.” To register for a future webinar, visit CER webinars.

Michelle Lee Flores is a partner in the Los Angeles office of Fisher & Phillips LLP. (www.laborlawyers.com) She focuses her practice on all aspects of employment litigation including jury and bench trials; arbitration; mediation and pre-litigation negotiations; sex, race, religion, age and disability harassment and discrimination; wage and hour violations including class actions; and wrongful termination.

Tamara I. Devitt is the managing partner in the Los Angeles office of Fisher & Phillips LLP. Her practice focuses on representing employers against claims of discrimination, unlawful harassment, wrongful termination, unfair business practices, and wage and hour-related issues.