Overtime

Do employers have to consider excusing employees with disabilities from working overtime as an accommodation under the ADA? The answer may depend on whether overtime is classified as an essential function, a qualification standard, or merely a scheduling issue. Under the ADA, employers do not have to remove essential functions or excuse an employee from meeting a qualification standard that is job related and consistent with business necessity. However, employers do have to consider modifying an employee’s schedule, absent undue hardship.

If an employer is going to claim that overtime is an essential function or a qualification standard, the employer should be prepared to show why. For example, are all employees (in a particular job) required to do overtime? If not, it might be hard for an employer to claim that overtime is essential. Is overtime something other employees would be happy to get more of? If so, it might be harder to show it’s an essential function because it would be easy to get other employees to cover overtime. 

Also, if working overtime is an essential function, employers would still need to look at whether there are accommodations to enable an employee to work overtime. For example, a doctor may restrict a patient from doing overtime because the patient cannot stand more than 8 hours/day.  But, the doctor may change this recommendation if he/she knew the individual would be given a stool to sit on while performing all/part of his job.  In some cases, an employee might be able to meet an overtime requirement if accommodations were provided during the regular shift and the overtime period as well.

As for scheduling overtime, employers might have to consider whether they can reschedule overtime as an accommodation.  This might be required whether overtime is an essential function or a necessary qualification standard. For example, if an employee is scheduled to work overtime on Mondays, but can't because he can only get medical treatment on that day, then the employer would have to consider scheduling overtime for another day unless that would cause undue hardship.

Family and Medical Leave Act (FMLA)

Regarding whether an employer must allow an employee to use FMLA leave when unable to work overtime, the following is from the U.S. Department of Labor at  https://www.dol.gov/whd/fmla/employerguide.pdf

If an employee would normally be required to work overtime, but is unable to do so because of an FMLA-qualifying reason, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement. However, voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.