Can a job duty be “essential” if the employee rarely has to do it? Yes!

I’ve presented a few “2013 Employment Law Updates” this month, and wanted to share with you some of the cases and rules that audiences have been most interested in talking about. This first article is to remind employers of the importance of accurate job descriptions.

Earlier this month, a California Appeals Court held that job duties that an employee does not regularly perform can still be essential to the position.  This means that if an employee cannot perform a rarely-needed, but still essential, function of his job, his employer does not need to accommodate him by excusing performance of that essential function.

In Lui v. City and County of San Francisco, a veteran San Francisco police officer (Lui) suffered a heart attack and could no longer perform physically strenuous work.

The job description for a police officer, even one performing administrative work, includes physically strenuous tasks, such as pursuing fleeing subjects and making forcible arrests.

Since Lui could not perform the physically strenuous tasks of chasing after suspects, or working in physically strenuous conditions, he could not perform as a police officer.  The Police Department offered to transfer him to a vacant “non-sworn officer” position, but Lui declined and retired. He then filed suit alleging disability discrimination.  Among other claims, he argued that in an administrative position, it was not really essential that he be able to perform the strenuous duties.

Under state and federal disability discrimination laws, an employer may terminate an employee whose disability makes him unable to perform the essential duties of his job, even with reasonable accommodations. To determine whether an employer’s claim that certain job duties are “essential functions,” a court may take into account factors such as the employer’s judgment, written job descriptions, the amount of time spent performing the functions, the consequences of not requiring the employee to perform the functions, the terms of a collective bargaining agreement, work experiences of past employees, and the current work experiences of employees in similar jobs.

In Lui, the Court disagreed with Lui and found that the requirement that police officers working in administrative positions to be able to perform physically strenuous duties was an accurate reflection of essential functions of the position. The Court noted that the City had shown that the number of officers available for duty in the streets had substantially decreased. In addition, the City demonstrated that all of its sworn officers, including those in administrative positions, must be able to respond to large-scale, infrequent emergencies such as demonstrations, earthquakes and mass celebrations (Go Giants! Go 49ers!). Based on these factors, the Court found that the ability to perform all the duties of a police officer, including the ability to engage in strenuous tasks such as making arrests, pursuing suspects and responding to emergencies, are essential for all police officer positions. Lui could not perform the strenuous activities required of a police officer, so the Department was not required to accommodate him by relieving him from those duties.

While the facts and circumstances in Lui are unique, this case helps employers understand what makes a function “essential” to a job. The case should also serve as a reminder for every employer to regularly review the essential functions of each position and confirm the accuracy of the related job description.   To explain to the Court what the Police Department had determined were essential functions of the police officer position, the City produced the job description,  which stated that the ability to perform the physically strenuous activities applied to officers on the beat as well as on a desk.

The value of a well-crafted, accurate job description cannot be underestimated when resolving a wide variety of employment issues, including accommodation of employees, performance assessments, and wage and hour classification questions.