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Apr 1, 2016

By Eric B. Meyer

Back in 2012, when I wasn’t part of this new protected class, I wrote here about whether an employer would violate the Americans with Disabilities Act by requiring an employee to work overtime.

The takeaway from that post was, yes, if working a minimum number of hours each week is an essential job function, disabled or not, an employee needs to work those hours.

This week, the Atlanta-based Eleventh U.S. Circuit Court of Appeals revisited this issue. Let’s see what happened…

A disability limits employee to 40 hours per week

In Agee v. Mercedes-Benz, the plaintiff had a disability (breast cancer) and, as a result, lifting restrictions. Later, the plaintiff became pregnant, after which, her doctor reaffirmed the lifting restriction. Plus, the plaintiff’s doctor limited her to no more than 40 hours worked per week “due to her medical limitations.”

Notably, the court understood this 40-hour-per-week restriction to be “seemingly indefinite.”

Once it learned of the restriction, the defendant notified the plaintiff that it could not accommodate a permanent 40-hour work week restriction. Additionally, defendant told the plaintiff that she was being placed on unpaid family medical leave, and she needed to go back to her doctors to get her restrictions lifted or she would be fired. The plaintiff declined to take family medical leave.

Twice more, the defendant reaffirmed in writing to the plaintiff that it could not accommodate her hours restriction and told her to fill out the Family and Medical Leave Act paperwork. Ultimately, the plaintiff refused to fill out the paperwork, but, informed the defendant that she was not abandoning her job. So, the defendant fired her for unexcused absences.

And then the plaintiff sued for disability discrimination.

Yes, working overtime can be an essential job function

The ADA contemplates a number of possible reasonable accommodation to allow an individual with a disability to perform the essential functions of her job. However, the ADA does not require an employer to eliminate essential functions of he job.

The defendant argued the plaintiff was not a qualified individual under the ADA because her indefinite restriction of working a maximum of 40 hours per week prevented her from maintaining a flexible work schedule and working mandatory overtime, which the defendant says is an essential function of its jobs. In other words, she couldn’t perform the essential functions of her job with or without accommodation.

Essential functions of the job are determined on a case-by-case basis. The appellate court here noted that “substantial weight is accorded to the employer’s judgment as to which functions are essential.”

Here, defendant’s HR representative testified that working overtime is an essential job function. And, among other things, the job description for the plaintiff’s position supported that. Plus, while plaintiff argued that a transfer to another open position for which she is qualified is often a reasonable accommodation, she failed to identify an open position in which working overtime was not an essential job function.

Additionally, the employer tried to do right by this employee by offering her unpaid leave. Except, she declined it and otherwise stymied what should have been a good faith, interactive process to determine the gamut of available reasonable accommodations.

So, no ADA violation. Employer wins,

Employer takeaways

  1. Update your job descriptions. Make sure they accurately set forth the essential functions of the job.
  2. Remove the blinders. That is, don’t be so focused on whether your employee can presently perform her one job. Consider a transfer to another open position or defined leave period as a reasonable accommodation.
  3. Be reasonable. Communicate in good faith with your employee to determine what accommodation options are available. Offer her multiple chances to utilize a reasonable accommodation. The more she refuses, the more unreasonable she looks.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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