Determining if an employee has a legitimate, legal need to be exempted from overtime is a tricky business.
For some businesses, overtime work is a necessity. For some employees, working overtime is a nuisance. But for workers with a disability, overtime may be a job function they simply cannot perform—one that may legitimately require accommodation under the Americans with Disabilities Act (ADA).
However, it’s not always easy for employers to tell when the ADA obligates them to honor disability-based requests to avoid overtime. And making a mistake in this area is not without costs. Incorrectly deny a legitimate ADA claim and legal action may result. Incorrectly grant an overtime exemption and you may well start a vicious cycle. Relieving one employee of the burden of overtime places a greater burden on other employees, thereby increasing their exhaustion, stress and discontentment. Absenteeism may rise and productivity may drop—placing an even greater overtime burden on remaining employees.
As a result, granting exemption from overtime is not something employers can afford to take lightly—especially since doctors’ notes re-questing such ac-commodations are readily obtainable.
It is understandable, therefore, that managers will question the need to accommodate re-quests for overtime exemption. It is essential for HR professionals in such situations to have a firm grasp on the correct way to decide if granting an exemption from overtime is required by the ADA.
Are Overtime Exemptions Legally Protected?
The ADA defines a disability as “a physical or mental impairment that substantially limits one or more of the major life activities.” Working is one of these major life activities, according to the ADA regulations published by the Equal Employment Opportunity Commission (EEOC). Therefore, an inability to work is a protected disability, under the law.
But is the inability to work overtime considered a disability? In general, it is not. Most federal appellate courts addressing this issue have found that an inability to work overtime is not a substantial limitation on the major life activity of working.
For example, in Tardie v. Rehabilitation Hospital of Rhode Island, 168 F.3d 538 (1st Cir. 1999), a human resources director claimed that excessive work hours caused her to experience debilitating symptoms from a heart ailment, necessitating a leave of absence. She asked to return to her job but to be excused from working more than 40 hours per week. Her superiors decided she could not perform the duties of her position with this limitation and refused to reinstate her.
The court affirmed the employer’s decision, ruling that a 40-hour-per-week limitation was not a disability. “There are vast employment opportunities available which require only 40-hour work weeks,” the court opined. Thus, the employee’s restriction was not a “substantial” enough limitation on the activity of working to trigger the law’s protection.
Another court adopted similar reasoning in Berg v. Norand Corp., 169 F.3d 1140 (8th Cir. 1999), where a diabetic was fired from her position as a tax department manager after she asked that her hours be limited to between 40 and 50 per week. The court said she wasn’t disabled, observing that it was “… hard to say that being limited to a 40- to 50-hour work week substantially limits one’s ability to work.”
These cases suggest that HR managers confronted with requests for exemptions from overtime should first decide whether employees making these requests truly are disabled. Does the employee’s impairment limit her in any substantial way other than in the ability to work overtime? If not, the ADA doesn’t obligate accommodation.
A Reasonable Accommodation?
In the cases discussed above, the plaintiffs failed to prove the existence of a disability. They mistakenly presumed that an overtime restriction was itself a “substantial limitation.” They were wrong, but one can envision instances where an employee with a true disability might be entitled to at least a temporary period of forgiveness from overtime.
For example, a stroke victim whose ability to walk and talk are substantially impaired might ask to return to his data entry position and temporarily be exempted from overtime while he regains his strength. This employee has a disability but can still perform the functions of his position, provided the employer accommodates the restrictions placed on his work hours.
In such cases, the employee requests a limit on overtime as an accommodation to a condition that substantially limits major life activities. Given that offering modified work schedules is a type of reasonable accommodation specifically listed in the ADA, the employer may have a duty to honor the employee’s request, unless it can prove one of the following:
- The waiver of overtime is an undue hardship.
- Overtime is an essential function of the position and thus an inability to work overtime renders the employee unqualified for the position.
An Undue Hardship?
Whether an overtime exemption constitutes an undue hardship depends on the nature, size and resources of an employer’s operation. For example, if an employee’s inability to work occasional overtime would require the hiring of additional staff, this could be an undue hardship for a small employer.
On the other hand, if there are always enough employees to cover the available overtime with little noticeable effect on the employer’s operation, there would be no undue hardship involved.
Generally speaking, it is very difficult for most employers to establish the existence of an undue hardship when the accommodation does not require the expenditure of large amounts of money or the hiring of additional employees.
An Essential Function?
The ADA draws a distinction between essential and non-essential job functions. The EEOC’s regulations define essential functions as the “fundamental job duties of the employment position the individual with a disability holds or desires.”
The obligation to afford a reasonable accommodation can require the waiver or elimination of non-essential job functions, but does not require the waiver or elimination of essential job functions. Consequently, if the ability to work overtime is deemed an essential function of a job, an employer’s refusal to grant an overtime exemption is not illegal, even if the employee’s inability to work overtime stems from a true disability. ·
An employer whose business requires employees to log substantial overtime might jump to the conclusion that the ability to work overtime is essential for all employees. As with most ADA issues, the tendency to jump to quick conclusions must be stifled.
Whether a job function is essential is evaluated on a case-by-case basis by examining a number of factors. The ADA itself provides that “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written [job] description ... [t]he description shall be considered evidence of the essential functions of the job.”
According to the EEOC, whether a particular job function is essential also depends on the following:
- The amount of time spent performing the function.
- The consequences if the function is not required to be performed.
- The terms and conditions of a collective bargaining agreement.
- Past incumbents’ work experience in the job.
- The experience of current incumbents in similar jobs.
EEOC regulations also provide that several other factors should be considered when distinguishing between essential and marginal job functions, including whether:
- The performance of the function is the reason the position exists.
- There are a limited number of employees available to perform the particular job functions.
- The function is so highly specialized that the incumbent must have certain expertise to perform the function.
An employer confronted with a request for an overtime exemption should never reject such a request on the cavalier assumption that overtime is an essential function of a particular job. Rather, careful analysis of the job in question is always required.
A case involving a power company demonstrates some of the features employers may need to win in court. In that case, a court ruled that the ability to work overtime was an essential function of a position that involved connecting and disconnecting electric service to customers. (See Davis v. Florida Power & Light Co., 205 F.3d 1301 (11th Cir. 2000), cert. denied, 531 U.S. 927 (2000)). In making this determination, the court relied on:
- The employer’s determination that overtime was an essential function of the job.
- The unique nature of the employer’s industry, which required same-day service.
- The fact that the employer had informed all applicants that overtime was a mandatory condition of employment.
- The company showed it had to rely on overtime to meet its service commitments.
- The unusually large amounts of overtime historically connected with the position.
This case illustrates an important point: The greater emphasis employers place at the time of hire on the ability to work overtime, the higher the likelihood that overtime will be deemed an essential function of the job.
Responding to Requests
The above analysis suggests that the first thing to do when presented with a request for an overtime exemption is to determine whether the employee suffers from a disability under the ADA.
Often, the documentation initially presented by the employee is nothing more than a doctor’s excuse, which provides almost no information about the employee’s condition.
Do not simply accept a doctor’s request as conclusive evidence that an employee is legally entitled to an overtime exemption. Instead, make further inquiries of the physician in an attempt to ascertain such information as:
- The nature of the condition that necessitates the restriction.
- Whether the employee’s medical condition otherwise restricts the employee in any major life activity.
- Whether the overtime restriction is intended to be an inflexible restriction or a guideline.
- The length of time the restriction is expected to last.
Armed with this information, you will be better able to decide whether there is a legal duty to grant the exemption. When the alleged inability to work overtime is really the only “restriction” on the employee’s life activities, it is unlikely that the employee is disabled. If the employee is not disabled, no duty of accommodation arises from the ADA.
On the other hand, if you decide that the employee does have an impairment that imposes substantial restrictions on the employee’s everyday activities, you must make the determinations associated with any request for accommodation:
- Whether the employee is seeking exemption from an essential function of the job.
- Whether the requested accommodation is the only reasonable option for enabling the employee to work.
- Whether the requested accommodation imposes an undue hardship.
Depending on the outcome of these determinations, the employee may or may not be entitled to the requested overtime exemption.
One final note: To date, the EEOC and most federal courts have taken the position that employers must attempt to find a new position for disabled employees who can no longer perform the essential functions of their jobs. If you cannot accommodate a disabled employee’s request for overtime exemption in a particular job, consider moving this person to some other job where this limitation could be accommodated.
Author’s note: Portions of this article appeared in the November 2001 issue of For the Defense.
Joseph Mack III is a partner, and Terrence M. Lewis is an associate, in the Labor and Employment Law Practice Group of the Pittsburgh office of the law firm of Thorp Reed & Armstrong LLP.