The Liability of Poorly Written Job Descriptions

There is a new wave of disability regulations that has started in California (CA) and will be spreading to other states.

The essence of the CA regs is the assumption that an employee is disabled regardless of the issue (e.g., unable to meet performance standards, poor attendance, etc.).

By starting with this assumption, the CA regs are forcing companies to engage employees in a conversation in an effort to ensure that the companies have considered reasonable accommodations for employee work issues.

The “get out of jail” card for businesses in CA involves three major steps according to the CA regs:

#1 Keep job descriptions (JDs) up to date.

#2 Always engage an employee in an interactive discussion to resolve any issue.

#3 Use annual performance evaluations to corroborate Essential Job Functions (EJFs).

HR POINTER: The three steps above have not been as explicitly publicized as in the new CA regs.  However, these steps have always represented the basis of any legal defense for a company that has been sued for violations of the Americans with Disabilities Act (ADA).

The critical issue with JDs is the need to distinguish between EJFs and Marginal Job Functions (MJFs).

EJFs are those duties for which the job exists, but it is not as simple as it may sound.  There are at least 3 fundamental reasons for which a job exists and at least 9 evidentiary factors that provide the proof for the EJFs.

If a company’s JDs do not adequately address the 3 reasons and 9 factors, the company will have great difficulty in defending its decisions in the event of an ADA claim.

Our JD and Performance Evaluation Programs are not only designed to increase productivity but are also designed as a defense for ADA issues.

Our JDs eliminate all the fuzzy language of traditional JDs and provide a level of specificity that is an excellent defense against an ADA lawsuit.  See link below.

Additionally, since our Performance Evaluation Program is driven by the performance standards written within our JDs, our evaluation process fulfills the requirement of validating JDs at least annually.  See link below.

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