ADA Won’t Protect Employee When Overtime Is Essential Part of the Job

Today, I’m going to revisit a topic that I’ve previously discussed a few times on the blog (here and here); namely, when is working overtime an essential job function under the Americans with Disabilities Act?

The quick answer is: the employer decides when.

But, let’s do a deeper dive.

Determining an essential job function

The ADA provides that no entity “shall discriminate against a qualified individual on the basis of disability in regard to… the hiring, advancement, or discharge of employees… and other…privileges of employment.” A qualified individual is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds.”

But what are the essential functions?

While courts determine essential job functions on a case-by-case basis, there are some guide rails. Seven of them actually:

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

Making overtime an essential job function

In a case that I read last night, the defendant-employer argued that it had checked enough of the seven boxes above to establish that working overtime was an essential function of the plaintiff-employee’s job.

For example, the defendant’s job description for the plaintiff’s position stated that working overtime was an essential job function, and the employer said it informed the plaintiff when he was hired that overtime was required, and that the plaintiff (and others in the plaintiff’s position) actually worked overtime.

Furthermore, of the seven factors listed above, courts afford the employer’s judgment the greatest weight. And, in this particular case, the defendant submitted an affidavit to the court which underscored that the plaintiff’s position required him to work overtime.

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Neither party presented evidence on the consequences of not performing overtime, and there was no collective bargaining agreement at issue. But, of the remaining five factors, it was a clean sweep for the employer. Thus, when the employee’s disability prevented him from working overtime, he was not a qualified individual under the ADA. Employer wins.

Employer takeaways

So, now you know how to make overtime an essential function of the job. But, here are some other things that you should know too:

  1. Whatever you determine to be the essential functions of a particular job, make sure to communicate to the person(s) performing the job. One way that you can do that is by reviewing the job description with the employee and requiring that the employee sign off on it.
  2. Don’t forget other possible accommodations. For example, if the plaintiff could not work overtime in his current job, but the company had another non-overtime job available for which the plaintiff was qualified, a transfer would have been a reasonable accommodation. Other possible accommodation could include temporary leave or light duty.
  3. The way to determine whether a reasonable accommodation exists that will enable the employee to perform the essential functions of the job is through a good-faith, interactive dialogue with the employee. Resist the urge to short-circuit this process. Doing so can turn a good defense into having to write a big check.

This article was first published on The Employer Handbook.

Eric B. Meyer

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.