Can an Employee Use the ADA to Avoid Overtime

Yesterday we wrote about whether an employee can use FMLA to avoid mandatory overtime. The case of Santiago v. Department of Transportation addressed that issue, holding that it was proper for the plaintiff in that case, who suffered from cluster headaches, to request intermittent FMLA leave to avoid mandatory overtime in order to relieve stress of excessive work hours and thereby reduce the chances of getting headaches. Today we consider whether that same employer would have to grant this same relief as a reasonable accommodation under the ADA.

First of all, we recognize that we are trying to compare apples and oranges here. But, frankly, when an employer has an employee with a chronic disability, it has to consider the whole fruit basket of obligations.(we also acknowledge that we might be straining that metaphor) One tricky question is whether an employer is obligated to relieve an employee with a disability from working certain schedules or number of hours, not because they are ill at the time, but in order for that employee to optimize their health. We saw it in the FMLA regulations as mentioned in the Santiago case from yesterday. An appropriate use of intermittent FMLA is to avoid exacerbating a medical condition. The example in the regulations is an asthmatic employee who has been instructed to remain home when the pollen count is high in order to avoid bringing on an asthma attack. So, we consider whether avoiding an entire segment of work, such as overtime, can be a reasonable accommodation under the ADA.

It turns out that this is not as easy of an answer as whether an employee can use FMLA to avoid overtime.  This really requires a several step analysis. First the employer has to determine whether the number of hours or the work schedule is an essential function of the position. Employers should examine whether that requirement is in the job description, and determine how often the job actually requires overtime.

Next, assuming that the overtime (or other schedule reduction) is not an essential function of the position, the employer must engage in the interactive process with the employee to determine whether a reasonable accommodation exists. This is where the employer can exert control again. Let’s say that an employee’s job requires four hours of overtime every month. It’s not so much overtime that the employer can automatically say that it’s an essential function of the job, but it also can’t be ignored. While the employee probably wants to just be relieved of the overtime obligation with no other obligation on his or her part, the employer, as one court held, can require the employee to use benefit time in lieu of working those hours. As courts remind litigants, the accommodation has to be reasonable, not necessarily what the employee wants.

On the other hand, courts have also held that if the only way that the employer can cover the extra hours that the employee cannot work is by overburdening co-workers or by foregoing completion of the work, then the accommodation is not reasonable and does not have to be granted.  If the issue is only about overtime, though, employers should be sure to well document the undue hardship that the accommodation would cause because many will initially see an employee’s ability to work a regular 35 to 40 hour week as being able to fulfill attendance requirements and the ability to perform the job. Ensure that your analysis includes all resulting hardships, such as work will not be completed, other employees will have to work a great deal of overtime, morale will suffer, or the employer will have to incur greater expenses to complete the work.

So, the answer to the question of relieving overtime as an ADA accommodation, unlike granting FMLA leave for that purpose, is a decisive “it depends”. What is certain is that when an employee seeks relief from mandatory overtime as an ADA accommodation the employer should examine the following: 1) determine that the employee is disabled as defined by the ADA; 2) determine whether the overtime is an essential function of the position; 3) engage in the interactive process to determine whether a reasonable accommodation exists; 4) if the employer determines that any accommodation would cause an undue hardship, document well the precise hardships that would result, including the actual extra cost to the employer.

Sorting through the obligations of FMLA, ADA and other employee protections under the law can be tricky. Employers should never hesitate to consult with an experienced labor and employment lawyer to ensure all considerations are met. The cost of doing so will be low compared to the expense in time and money of defending against discrimination claims.