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Working Overtime under ADA
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Working Overtime under ADA
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Recently, an employee at one of our Distribution Centers brought in a medical slip from a physician stating he was unable to work any overtime on a permanent basis due to a recurring back condition. W
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Working Overtime under ADA
posted at 8/3/1999 5:30 AM EDT
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Posts: 3
First: 8/3/1999 Last: 8/4/1999 |
Recently, an employee at one of our Distribution Centers brought in a medical slip from a physician stating he was unable to work any overtime on a permanent basis due to a recurring back condition. We have informed the employee that we require all of our employees to be available for a reasonable amount of overtime, and that this is an "essential function" of our jobs. Has anyone else dealt with this type of a situation, and how did it turn out?
mvanderv@morganproductsltd.com |
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Working Overtime under ADA
posted at 8/3/1999 6:47 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
Be careful on how you proceed with this issue. Don't assume that just because the employee has a "back condition" that he is ADA qualified and entitled to reasonable accommodation. Make the ADA assessment, unless you ahve already determined that the employee is ADA qualified or have treated the employee ASIF he was disabled. Then, if the employee does qualify for a reasonable accommodation under ADA, make sure that there are no other reasonable accommodations that would allow the employee to perform the essential duties of the job including overtime (e.g., special equipment or furniture). Maybe that would work for both the employer and the employee (and doctor). Secondly, under ADA you may be required to make a reasonable accommodation by modifying a policy for a qualified disabled employee unless the company can show that the modification would fundamentally change the essential function of the job. Thirdly, be careful in the use of the term "essential function", especially on something like "overtime." The problem is that essential function is a subjective element but with criteria -- such as HOW OFTEN IS THE DUTY PERFORMED. If overtime is not actually done regularly, then to claim that it is essential to the job would be probably a misstatement. While an employer can claim that every job CAN require overtime, the fact that overtime has not been called for for several weeks or months, would show, to me at least, that overtime IS NOT an essential function. The job can routinely be done without it. If removing the overtime requirement for this ADA-qualified employee would not constitute undue hardship to the employer or cause a fundamental change in the company's operations, then you would probably accede to the request (again, assuming there are no other reasonable accommodations that could be implemented in its place). You may need to restructure the job so that the job duty(ies) that causes the overtime (if the duty is not essential) are eliminated. If you do not permit the employee to remain on the current job, you would need to offer the employee another job that is vacant for which the employee is qualified and overtime is NOT an "essential function", and provided you have a regular practice or policy of reassigning non-dsabled employees. |
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Working Overtime under ADA
posted at 8/3/1999 9:49 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
"Hatetchman" has highlighted the key issues for you. An employee must be disabled for purposes of the ADA to come within the coverage of the Act. (State law may vary). To be an individual with a disability, the employee must (i) have a physical or mental impairment that substantially limits one or more of his or her major life activities; have a record of such an impairment, or (iii) be regarded as having such an impairment.
If disabled, the employee must be qualified-- that is, able to perform the essential functions of the job with or without a reasonable accomodation. "Hatchetman's" comments on whether overtime is an essential function of your employee's position are well-taken; no need to repeat them here. By the way, I'm not quite sure what you mean by "on a permanent basis." Is the doctor saying that the back condition will forever prevent the employee from working any overtime (even though it is only a "recurring" condition)? Or, is the doctor simply saying that, for now, the employee cannot be put on "permanent" overtime? |
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Working Overtime under ADA
posted at 8/4/1999 4:54 AM EDT
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Posts: 3
First: 8/3/1999 Last: 8/4/1999 |
The doctor's note specifically states that the employee can only work 40 hours a week "permanently" due to his back problem. We do not believe that this employee is covered by the ADA and have not treated him as such. I was primarily wondering if there was any reason that we might have to alter this position. It is conceivable that if he should attempt to utilize the note as a reason to work OT (which we require regularly), we might take disciplinary action to force him to work. |
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Working Overtime under ADA
posted at 8/4/1999 6:49 AM EDT
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Posts: 946
First: 6/14/1999 Last: 12/14/2005 |
You don't know at this point if the employee is ADA qualified or not and that is a key element right now -- to find out. If you don't and he files an EEOC complaint, EEOC will burn you for your failure to assess ADA eligibility even though the employee may not be ADA qualified, unless you can demonstrate at this point that the employee is does NOT have a medical impairment that significantly limits a major life activity. By the doctor's note and the restriction, it can be argued, that the employee is asking for reasonable accommodation by modification of your overtime policy. Find out if the employee's medical condition qualifies as an ADA disability and then go from there. |
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