Keep Your Job Descriptions FEHA-Compliant!

California’s Fair Employment and Housing Act (FEHA) expands upon federal prohibitions against discrimination. As it applies to employers with five or more workers, your organization most likely needs to comply—and your job descriptions need to be crafted carefully to stay on the right side of the law. Here’s some help from attorney Marc L. Jacuzzi.

Jacuzzi, who is a shareholder in the law firm of Simpson, Garrity, Innes, and Jacuzzi, shared his expertise in a recent webinar presented by BLR® and HR Hero®.

How Do Job Descriptions Factor In?

From a disability law standpoint, the most important thing the job description does is delineate the essential functions of the job, says Jacuzzi, from physical and mental requirements to environmental factors. Just as this is important under the Americans with Disabilities Act (ADA), so is it important under FEHA.

Remember: Disabled employees must be able to accomplish the essential functions of the job, with or without reasonable accommodation, to be considered, says Jacuzzi. Job descriptions are helpful in the interactive process of discussing essential functions to stay FEHA-compliant.

What Is an Essential Function?

Revised FEHA regulations define “essential functions” as the fundamental job duties of the employment position, explains Jacuzzi. A job function may be considered essential for several reasons, including:

• The reason the position exists is to perform that function.
• There is a limited number of employees available among whom the performance of that job function can be distributed.
• The function may be highly specialized—the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

Need help accommodating your employees with bipolar disorder? Join us on April 16, 2015, for the new interactive webinar California Employees with Bipolar Disorder: HR’s Practical Accommodation Roadmap. Learn More

Essential Functions vs. Marginal Functions

Marginal functions are those functions that, if not performed, would not eliminate the need for the job, says Jacuzzi. These less-than-essential duties could be readily performed by another employee or could be performed in an alternative way.

You may want to eliminate or amend any marginal functions that appear in your job descriptions, suggests Jacuzzi. For example, “Must be able to lift up to 25 pounds” can be an essential job function, but if this is followed by “and occasionally lift up to 50 pounds,” be careful—the word “occasionally” could indicate that the 50-pound requirement is a marginal function that could be performed by another employee.

What Does FEHA Say?

FEHA regulations state that evidence of whether a particular function is essential includes, but is not limited to:

• The employer’s judgment as to which functions are essential. This can be handy for employers, says Jacuzzi—it’s their job to set the tone.
• Accurate, current written job descriptions.
• The amount of time spent on the job performing the function.

Regarding time spent, Jacuzzi clarifies that if employees spend the majority of their time performing a particular function, it is good evidence that the function is essential. On the other hand, the amount of time spent is not determinative. For example, the essential functions of a firefighter position may include the ability to carry an adult out of a burning building, even though this action may not be performed frequently. This is due to the importance of the function (and the consequences of being unable to perform the function), says Jacuzzi.

Further evidence that could support whether a job function is essential under FEHA includes:

• Legitimate business consequences of not requiring the employee to perform the function.
• Job descriptions or functions contained in a collective bargaining agreement.
• The work experience of past incumbents in the job.
• The current work experience of incumbents in similar jobs.
• References to the importance of the job function in prior performance reviews.

Tomorrow, a few do’s and don’ts from Jacuzzi on keeping your job descriptions compliant, plus an introduction to the new webinar California Employees with Bipolar Disorder: HR’s Practical Accommodation Roadmap.

Download your copy of 13 Job Description Do’s and Don’ts today!