Inability to Work Overtime Dooms Discrimination Claim

 

By Scott M. Wich November 27, 2019
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Reasonable accommodations can be made in many ways, including in adjustments to work schedules. Rarely is a work schedule rule, such as mandatory availability for overtime, an essential job function. Nonetheless, the 8th U.S. Circuit Court of Appeals decided that when an employee must be available for certain hours of work, an employer may lawfully deny a request to change those hours.

The plaintiff worked as a critical call dispatcher. The employer maintained a round-the-clock dispatch center that was responsible for responding to emergency calls involving safety issues in or around railroad property. Due to the nature of the job, availability for work in excess of scheduled hours was mandatory.

Critical call dispatchers could be required to work up to four hours of additional overtime if another employee missed his or her shift. Such dispatchers are not permitted to leave work at the end of their scheduled shift if they are on an unresolved, ongoing call.

The plaintiff took several leaves of absence from 2012 through 2014 for various issues. In September 2014, her doctor cleared her to return to work with the restriction that she not work overtime. The plaintiff independently advised the employer that the overtime restriction was until January 2015.

The employer did not return the plaintiff to work. It instead advised the plaintiff that it could not accommodate her restriction. The plaintiff contacted her manager to say that the restriction was not permanent. The manager advised the plaintiff to provide a note from her doctor to that effect.

The plaintiff failed to do so and was fired in October 2015. She sued for, among other claims, a violation of the Americans with Disabilities Act. The lower court dismissed her claims on summary judgment.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

In affirming the dismissal, the appeals court first looked at whether availability for overtime was an essential job function by considering the following factors:

  • The employer's judgment on essential duties.
  • Written job descriptions.
  • The amount of time spent on the duty claimed to be essential.
  • The consequence of the claimed essential duty not being performed.
  • The current experience of employees in similar jobs.

The appeals court noted that the company's attendance guidelines described overtime as mandatory in order to ensure that staff is available for necessary work. It further found that other employees would be required to work the overtime if the plaintiff was excused from that work. Additionally, it concluded that the safety of the company's operations would be impaired if staff was not available to work overtime. Since availability for overtime was an essential job function, the restriction against working overtime disqualified the plaintiff from the position.

The plaintiff raised several arguments, including that the company had earlier been willing to accommodate the plaintiff's overtime restriction temporarily. The appeals court held that an employer "does not concede that a job function is nonessential simply by voluntarily assuming the limited burden associated with a temporary accommodation." The company was not thereafter required to make a permanent adjustment to its overtime rule as an accommodation.

The plaintiff also argued that she sought only a temporary accommodation. However, she failed to provide a doctor's note describing the restriction as temporary. The appeals court concluded that the company was entitled to rely on the original doctor's note, which provided no time limit on the restriction.

McNeil v. Union Pacific Railroad Co., 8th Cir., No. 18-2333 (Aug. 26, 2019).

Professional Pointer: Accommodation issues, particularly when they involve temporary restrictions, can be thorny matters for even seasoned HR professionals. Careful attention to well-drafted job descriptions and genuine attempts to identify an accommodation can go far toward avoiding potential legal liabilities.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York City.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

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