Published in the October, 2019 issue of the PELRAS newsletter
Published on: Thu 24th Oct, 2019 By: Robert Vernon
The Eighth Circuit recently upheld the principle that mandatory overtime could be recognized as an essential job function, meaning that a disabled employee could not request to avoid working overtime as a reasonable accommodation under the Americans with Disabilities Act (the “ADA”).
In McNeil v. Union Pacific Railroad Co., the employee worked as a critical call dispatcher at Union Pacific’s 24-hour dispatch call center, where her job included responding to calls related to incidents on or near railroad property to help ensure employee and public safety. In order to guarantee that this position was consistently covered, Union Pacific had a written policy that dispatchers were not allowed to end their shift until they were relieved by the next shift’s dispatcher. Also, a dispatcher’s shift was color-coded to represent overtime expectations for the employee. Depending on which color shift the dispatcher was scheduled to work, the dispatcher may be expected to work up to four additional hours either before or after their scheduled shift if another employee failed to show up to work.
McNeil was off work on disability leave for several months. When she attempted to return to work, McNeil and her physician requested an accommodation under the ADA of working only morning shifts with no overtime. McNeil did not provide an end date for this accommodation, and did not provide any medical records indicating when this restriction would end. Union Pacific determined that it could not make an accommodation of not requiring McNeil to work overtime for an indefinite period of time, and could not identify a reasonable accommodation that would allow McNeil to safely return to work in her assigned position.
McNeil argued before the Court that working overtime was not an “essential function” of her job as a dispatcher, and because of this, Union Pacific should be forced to accommodate her no overtime request. The Court disagreed, recognizing that Union Pacific had established guidelines stating that overtime was “mandated” and had schedules including “multiple layers of redundancy to ensure staff availability for overtime work.” The court noted that if a dispatcher was unable to work overtime, then either other employees would have to work overtime more often, or the safety of Union Pacific’s operations would be impaired.
The Court further rejected McNeil’s argument that Union Pacific’s willingness to accommodate a “no overtime” schedule for a temporary, two month, period demonstrated that overtime was not an essential function. The Court recognized that a temporary reprieve from overtime was a limited burden on the Company, different from a permanent or indefinite accommodation. Union Pacific’s willingness to accept a temporary restriction on overtime did not mean they had to bear the different and greater burden of a permanent accommodation.
The Eighth Circuit’s ruling is part of trend in federal courts to recognize that under the ADA, overtime can be considered to be an essential function of a job. See also, Gavurnik v. Home Properties, 712 Fed. Appx. 170 (3d Cir. 2017) (and cases cited therein). The Court recognized several relevant factors to consider whether overtime was essential to a particular job, including: (1) written job descriptions prepared before advertising and interviewing applicants for the job, (2) the frequency and amount of time spent on the job when overtime was required, and (3) the consequences of not requiring the employee to work overtime.
Employers must keep in mind, however, that an employee with a “serious health condition” who is eligible for intermittent leave under the Family and Medical Leave Act (“FMLA”), may use leave to be excused from mandatory overtime if the leave is consistent with his/her certified serious health condition. See 29 CFR § 825.205(c). Employers with questions regarding mandatory overtime and medical excuses, including leave under the FMLA, should consult with legal counsel, and should also ensure that mandatory overtime is clearly spelled out in the “essential functions” section of the applicable job description.