Essential Job Functions and Failure to Accommodate

The Fair Employment and Housing Act (“FEHA”) requires that an employer provide reasonable accommodations that allow an employee to perform the essential functions of their job. Gov. Code §12940(m). Where a failure to accommodate was a “substantial factor” in causing the exacerbation of a workplace injury, the employer may recover damages for that exacerbation. See Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4^th 679, 698-699; Fussell v. Timec Company, Inc. (2014) 2014 WL 810917 at *9-13; Bagatti v. Department of Rehabilitation(2002) 97 Cal.App.4^th 344, 356-358.

The FEHA expressly defines “essential functions” and provides guidance on what factors to look at to determine if a particular function is “essential.” These factors include:

• The reason that the position exists is to perform that function;
• The limited number of employees available among whom the performance of that function can be distributed;
• 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;

The type of evidence of whether a particular function is essential includes but is not  limited to:

• The employer’s judgment as to which functions are essential;
• Written job descriptions prepared before advertising or interviewing applicants for the job;
• The amount of time spent on the job performing the function;
• The consequences of not requiring the incumbent to perform the function;
• The terms of a collective bargaining agreement;
• The work experience of past incumbents in the job; and
• The current work experience of incumbents in similar jobs.

Gov. Code §12926(f). If the job would not be fundamentally altered if the asserted duty was eliminated, then the duty is not “essential.” Feliciano v. Rhode Island (1^st Cir. 1998) 160 F.3d 780, 785. Similarly, if the end result is capable of being achieved by different means or methods, the particular method of doing so is not an “essential function.” Skerski v. Time Warner Cable (3^rd Cir. 2001) 257 F.3d 273, 285.

As a part of the good faith interactive process required under FEHA, an employer is required to analyze job functions to establish the essential and nonessential job tasks. Taylor v. Phoenixville School Dist. (3d Cir. 1999) 184 F.3d 296. Employers must consult and cooperate with disabled employees to determine the most effective accommodations. Beck v. University of Wis. Bd. Of Regents (7^th Cir. 1996) 75 F.3d 1130, 1135.