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Don’t feel compelled to permanently reassign essential job functions to satisfy FEHA

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in Employment Law,Human Resources

While the California Fair Employment and Housing Act (FEHA) requires employers to reasonably accommodate disabled employees, there are limits.

One involves the permanent reassignment of essential functions to other employees. Employers don’t have to push essential functions onto other employees if it’s clear the disabled employee will never be able to take those functions back.

Recent case: Mohammad is an electrical engineer with specialized expertise in designing and testing high-voltage electric power systems. He was hired largely because of his experience and skill working with high voltage. One of the essential functions listed in Mohammad’s job description was testing high-voltage systems. Mohammad spent much of his time designing such systems and even did some limited testing while his designs were in the development pipeline.

Then Mohammad was diagnosed with several back disabilities, including spinal osteoarthritis, spinal stenosis, radiculitis and herniation. He underwent back surgery and went out on leave. During the next year, he returned to work for just one week. He could not sit for more than one hour, stand for more than 10 minutes or lift more than five pounds.

Then he began taking the prescription drug Percocet, which is a narcotic used to treat severe pain. Because of Percocet’s narcotic effect, Mohammad’s doctors forbade him from getting anywhere near high-power electrical circuits. Percocet can cause drowsiness, dizziness and lapses in concentration.

Mohammad asked his employer to provide reasonable accommodations so he could return to work. He insisted that high-voltage testing wasn’t really an essential function of his job.

His employer said it was essential and that it had no obligation to assign those essential functions to another employee when it looked like Mohammad would continue to use Percocet indefinitely.

Mohammad was terminated after spending more than a year on short-term disability leave. He sued, alleging failure to accommodate.

But the court threw out his case. It reasoned that testing high-voltage designs was an essential function of his job. After all, Mohammad was hired in large part because he had expertise in that kind of testing. Plus, although he hadn’t done much testing while working for the company, he had tested other designs there and could have been expected to test his own designs when they neared completion.

The court then explained that under FEHA, employers don’t have to permanently reassign essential functions to other employees as a reasonable accommodation. Doing so would, in fact, be unreasonable. In this case, it was pretty clear that Mohammad wasn’t going to be testing high-voltage designs anytime soon. (Khan v. S&C Electric Company, No. 3:11-CV-03261, ND CA, 2012)

Final note: This case might have turned out differently if Mohammad’s doctors thought he could wean himself off Percocet, have more surgery to end the pain or otherwise return to better function within some reasonable time. But that simply wasn’t the case.

Plus, the employer had been extremely generous with leave time during Mohammad’s post-surgery period. He clearly wasn’t due any additional FMLA leave. Nor could he reasonably have argued that additional time off would itself have been a reasonable accommodation, given that he had already missed a year of work.

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