From the desk of Tracie DeFreitas, M.S., Principal Consultant — ADA Specialist
Sometimes employees are unable to work overtime (OT) due to limitations associated with a medical impairment. Employers are then faced with determining if the ability to work overtime (or more than a certain number of hours in a shift/week) is required, or if it is necessary to provide a reasonable accommodation that aligns with an employee’s medical restrictions. Offering a modified work schedule is a type of accommodation under the ADA, and so employers sometimes must consider excusing employees with qualifying disabilities from working overtime, unless it can be shown that the ability to work overtime is a qualification standard or essential job function.
JAN cannot indicate if exempting an employee with a disability from working overtime is required as an accommodation because each situation must be assessed case-by-case to determine what is reasonable. As part of the interactive process, it is necessary to determine if the ability to work overtime in a particular position is either a qualification standard that is job-related and consistent with business necessity, and/or an essential function of that position. Employers are not required to change or ignore qualification standards or essential functions as accommodation under the ADA. This means, in some situations, that an employee who is medically unable to work required overtime (with or without accommodation) due to a disability, may not be qualified to remain in the current position.
The EEOC has noted that the ability to work overtime may be a qualification standard that employers must show is job-related and consistent with business necessity in order to be required. The standard must be a legitimate qualification for the specific job the standard is being used for and must relate to performing the essential functions of the position.
Alternatively, some courts have held that the number of hours worked (i.e., fulltime work or more than 40 hours) in certain jobs can be an essential part of that job and that working overtime can be an essential job function. In either case, much of the evidence needed to demonstrate that requiring the ability to work overtime is a standard that is job-related and consistent with business necessity will be the same evidence needed to show that working overtime is an essential job function.
From a practical standpoint, when tackling this accommodation issue, it's important for employers to factually determine why working overtime is required. Employers who receive requests for overtime exemption should not assume automatically that overtime is an essential function of a particular job. Rather, careful analysis of the job in question is required. Evidence will include information about whether or not all employees in a particular position are actually required to perform the function and if removing the function will fundamentally change the job. If it is found that overtime is not an essential function or a qualification standard, then exemption may need to be considered, barring undue hardship. The EEOC offers useful information to assist employers in establishing job-related qualification standards and identifying the essential functions of a job. To learn more, see:
- ADA Technical Assistance Manual, title I, Chapter IV, Establishing Nondiscriminatory Qualification Standards and Selection Criteria
- ADA Technical Assistance Manual, title I, Chapter II, Who Is Protected By the ADA?, 2.3(a) Identifying the Essential Functions of a Job
Many factors can impact the determination of whether or not overtime is required and if it is a reasonable accommodation to exclude employees who are restricted from working overtime, including:
- Whether or not all employees in a particular position are actually required to perform the function, or only some
- Whether exempting an employee from overtime will significantly impact operation of the business, affect staffing, etc.
- Whether there's a way to enable an employee to work overtime if an accommodation can be provided to make it more feasible. In some cases, an employee might be able to meet an overtime requirement if accommodations can be provided during the regular shift and while working overtime (i.e., frequent breaks, a stool, etc.)
- Whether employees who are not restricted from working overtime would be open to working additional overtime
- Whether overtime can be worked at a different time (i.e., scheduling mandatory OT for a different day when conflicts with medical treatment); and
- If overtime is an essential function or qualification standard, whether the employee can be reassigned to an alternative, vacant position that does not require working overtime and aligns with the employee’s scheduling needs
The following steps may be useful when exploring exemption from overtime as a reasonable accommodation under the ADA:
- Determine if the employee has a disability under the ADA
- Determine whether working overtime is a qualification standard and/or essential job function of the employee’s position; and
- Engage in the interactive process to determine whether a reasonable accommodation exists (i.e., limited OT, exemption from OT, rescheduling OT, reassignment, etc.).
For more information about overtime issues, reasonable accommodation, and the interactive process, please contact JAN to speak with a consultant.