Do you have a written job description for every employee in your company that lists all the essential functions their jobs? If not, you will be in a difficult position when an employee comes to you with a disability and requests accommodation. Under the Fair Employment and Housing Act ("FEHA") employers are required to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation. However, without a written job description, an employer will end up in a battle over what an employee's "essential job functions" are and the extent of accommodation the employer should provide.
The importance of well-written job descriptions that lay out the essential job duties of the position is illustrated in the recent California Court of Appeals decision in Nealy v. City of Santa Monica (March 2015). Mr. Nealy was a solid waste equipment operator for the City of Santa Monica ("the City") when he injured his knee on the job. The City worked with Mr. Nealy for several years attempting to accommodate his disability, including a transfer to a less strenuous position within the City. However, there came a point when there was no position available for which Mr. Nealy was either qualified or fit within the medical restrictions provided by Mr. Nealy's doctor. Mr. Nealy brought a lawsuit against the City including a cause of action for failure to provide reasonable accommodation. The City brought a motion for summary judgment which was granted by the Superior Court and Mr. Nealy appealed.
In determining if an employer improperly denied a reasonable accommodation, the Court must consider whether: 1) the employee suffered a disability; 2) the employee could perform the essential functions of the job with a reasonable accommodation; and 3) the employer failed to reasonably accommodate the employee's disability. In Nealy, the City argued that it was undisputed that Mr. Nealy could not perform the essential functions of a solid waste equipment operator with or without reasonable accommodation. Mr. Nealy argued that not all the listed job duties in his written job description were "essential." Specifically, part of Mr. Nealy's job was to operate 4 different types of vehicles; however, due to his restrictions Mr. Nealy would have only been able to operate one of the 4 types of vehicles. The Court rejected Mr. Nealy's argument that allowing him to just operate one of the 4 types of vehicles was a reasonable accommodation as he could not operate the other three types of vehicles with any kind of accommodation.
Mr. Nealy insisted that the City could have restricted his position so he did not have to perform heavy lifting or kneeling. The City argued that eliminating these two job functions would eliminate essential functions of the position. The Court found that "elimination of an essential function is not a reasonable accommodation."
Finally, the Court discussed the issue of whether reassignment to a vacant position is necessary as a reasonable accommodation. FEHA does require an employer to offer an employee needing an accommodation a "comparable" or "lower graded" vacant position if he or she is qualified to fulfill the duties. The Court emphasized, though, that while moving an employee to a vacant position may be a reasonable accommodation, an employer is not required to reassign an employee to a position he or she is not qualified to perform, nor is an employer required to promote an employee or create a new position to accommodate the restrictions.
One take-away for employers from the Nealy case should be that every employee should have a written job description expressly sets forth all of the essential job duties of the position, including frequency of bending, stooping, lifting, sitting, standing, etc. This document is vital both when the employer is considering how to properly accommodate an employee and when a dispute arises over whether an employee could have been accommodated. Employers should have competent employment law counsel review job descriptions on an annual basis to ensure all essential job duties are properly articulated and up-to-date. Employers should also be cautious in determining that providing a reasonable accommodation is an "undue hardship." The undue hardship factor was not at the center of the Court's ruling in Nealy and the California courts have ruled that accommodations that seem burdensome are not an undue hardship to the employer, including extending leaves of absences.