Establishing Essential Functions

Establishing the essential functions or duties of an employee's job is critical for assuring compliance with both the Americans with Disabilities Act and the disability provisions of the California Fair Employment and Housing Act. Both laws protect those employees who are able to perform the essential functions or duties of their jobs with or without a reasonable accommodation. The perils of not paying sufficient attention to defining the essential functions of a job are demonstrated by a recent case from the federal district court in Minnesota, which is described below.

The ADA defines the qualified individuals who are protected from discrimination as those who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this sub chapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. section 12111(8).

The EEOC's regulations provide some guidance on what constitutes an essential function: "(1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following: (i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. (3) Evidence of whether a particular function is essential includes, but is not limited to: (i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 CFR section 1630.2(n).

The FEHA bans discrimination on the basis of mental or physical disability, but "does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, 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." Cal. Gov. Code section 12940, subd. (a)(1). The regulations promulgated under the FEHA by the Fair Employment and Housing Commission repeat the EEOC's definition at Cal. Code Regs. tit. ii, section 7293.8(g).

In the case from Minnesota, the plaintiff, the defendant bank's compliance officer, suffered from multiple sclerosis. Because of her condition, she required flexible hours that would allow her to work outside normal bank hours from time to time, but she was able to work a 40-hour work week. The bank discharged her immediately after it received the results of an FDIC examination that found fewer significant violations but more violations overall than in the previous examination. As one of its defenses to her lawsuit under the ADA, the bank claimed that she was unable to perform the essential functions of her job because she could not be present during all normal banking hours. The plaintiff claimed that she could perform some of her functions outside normal banking hours, pointing to the provision of a laptop and the fact that she had been allowed to work at home and outside normal banking hours. In denying summary judgment, the district court specifically noted the lack of any evidence that her essential job functions were established before she began discussions about reasonable accommodations with the bank. See Wandersee v. Farmers State Bank of Hartland, Case No. 10-4159 (D. Minn May 9, 2012).

Although an employer's written job description prepared before a dispute arises will not always be accepted as a proper assessment of essential functions, it will be persuasive, and may tip the balance in the employer's favor. Without such a prior written description of essential functions, the employer will certainly be at the mercy of a jury's after the fact assessment.

Accommodating Mental Disabilities

A recent case from New York provides fodder for a discussion of the scope of an employer's obligation to accommodate an employee's mental disability. A law firm fired one of its attorneys after learning that he attempted to have charges for adult movies and calls to escort services to the firm's clients. The attorney sued for discrimination and failure to accommodate his bipolar disorder. The New York Division of Human Rights awarded him $600,000, but the Appellate Division of the New York Supreme Court tossed out the award. Hazen v. Hill Betts & Nash, LLP, Case No. 104781/10 (N.Y. App. Div. Jan. 5, 2012). "[A] petitioner's disability does not shield him from the consequences of workplace misconduct."

Although the court's conclusion accurately described the circumstances of that case, employers must engage in a more nuanced analysis to avoid liability. For example, employees with mental disabilities that cause them to violate workplace attendance policies may nonetheless be entitled to an accommodation. See Humphrey 
v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) (medical transcriptionist with obsessive-compulsive order that prevented her from getting to work on time might be entitled to work from home or to unpaid time off to bring her disability under control). The EEOC has opined that a schizophrenic warehouse worker who violates a company's conduct toward others and dress policies may be entitled to a pass. See
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 30, Example C.

An employer should use the following analysis to determine its responsibilities when dealing with an employee who has violated an employer's workplace conduct standards:

1.  Does the employer have information from which it could reasonably conclude that the employee has a disability? If an employer does not know that an employee has a disability, it cannot be accused of discrimination, and has no obligation to provide a reasonable accommodation. Further, an employer may not even inquire about a possible disability unless it has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
2. Is the workplace conduct standard job-related for the position in question and consistent with business necessity? The EEOC's opinion that the warehouse worker referred to in its guidelines might be entitled to a pass on the conduct and dress policies was based on its conclusion that those policies were not job-related for a warehouse worker with no customer contact.
3. Is there a reasonable accommodation that would allow the employee to perform the essential functions of his or her job despite the disability? The EEOC Enforcement Guidance gives the following example: A reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and coworkers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior, and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard -- a rule prohibiting disruptive behavior towards patrons and coworkers -- that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future. See No. 31, Example A.

Earlier posts on the disability laws appeared on 7/10/2011, 6/12/2011, 1/14/2009, 9/14/2008, and 7/20/2008.

Injured, Sick and Disabled Workers

The tangle of laws governing treatment of injured, sick and disabled workers can make it difficult for an employer to make the right choice. If the employer makes the wrong choice, a lawsuit with its attendant costs and exposure to a jury verdict frequently follows.

The Costs of Being Wrong

A second grade teacher fell in her classroom, injuring her knees to the extent she required surgery. She subsequently developed fibromyalgia, a pain syndrome. When she was released to return to work 20 months later to a sedentary position, the school district required her to return as a second grade teacher (not sedentary), even though there were several available sedentary jobs for which she was qualified. A Los Angeles County jury awarded her $1,410,709. Reasonable accommodation includes putting a disabled employee into a vacant position if she is no longer able to perform her regular job. Cortes v. Montebello Unified Sch. Dist., Case No. BC359419 (L.A. Superior Court 5/27/2008).

An LAPD officer returned to work following a 4-year workers compensation leave, but then was told he would not be allowed to work any more because the Workers Compensation Appeals Board had adjudicated him 100 percent permanently disabled. A Los Angeles County jury awarded him $1,571,500. Employers must make every effort to allow their disabled employees to continue to work even if a workers compensation ruling appears to bar a return to work. Cuiellette v. City of Los Angeles, Case No. BC311647 (L.A. Superior Court 9/11/2007).

A city employee took FMLA leave to undergo bypass surgery. Although her cardiologist cleared her to return to work, her employer insisted that she see a city doctor for clearance. She refused to go and was fired. An Orange County jury awarded her $216,575. Employers must strictly follow the rules on medical certification. Cosby v. City of Orange, Case No. 07CC00242 (Orange County Superior Court 2/15/2008).

Applicable Laws

The federal Americans with Disabilities Act and the California Fair Employment and Housing Act prohibit discrimination against disabled employees who are able to perform the essential functions of their jobs with or without accommodation, and require employers to provide reasonable accommodation to disabled employees.

Other laws also provide protection for injured, sick and disabled employees -- the Family and Medical Leave Act, the California Family Rights Act, the pregnancy disability provisions of the Fair Employment and Housing Act and the Workers' Compensation Act.

Our Tips for Handling Injured and Disabled Workers provides an overview of the important principles for all these statutes. An employee's condition may require the employer to apply principles from all, some, one or none of the statutes discussed.

Employers must pay close attention to having an accurate and up-to-date job description for each employee, and to obtaining medical verification for physical and mental conditions that affect employment decisions. Job descriptions must describe the essential functions of each position. Obtaining medical verification will assure that the employer has the necessary information to confirm the effect of the employee's condition on performance of job duties. It will also support the employer's decision if the employee should challenge any adverse actions.

Other Resources

EEOC Disability Discrimination Page

DOL Family & Medical Leave Page

DFEH Publication on Disability Discrimination

DFEH Publication on California Family Rights Act

DFEH Publication on Pregnancy

Division of Workers' Compensation Employer Information