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Know Your Rights--Federal Courts Give Some Breathing Room Under the ADA in Scheduling Employees

By Harley M. Kastner

In a perfect world, there would be no medical restrictions on employees' ability to work. Unfortunately, the world is not perfect. Imagine that you are a manager of a plant. Recently, you have been facing some fierce competition and productivity is at an all-time low. You have numerous senior employees complaining because they are required to work overtime, while less senior employees work overtime as they please, providing medical excuses in order to avoid overtime. However, you have a seniority based overtime distribution system. Under this system, you give more senior employees the option of working overtime. If they decline, you require the less senior employees to work overtime, even if they are medically restricted from doing so. But wait! You just remembered that the Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for disabled employees. So, what do you do?

Don't fret. A few years ago the Supreme Court held that employers need not adjust a bona fide seniority based system in order to accommodate individuals with disabilities. U.S. Airways, Inc. v. Barnett. In U.S. Airways, an injured employee asked to be reassigned to a different position because he was medically restricted from continuing to work at his former position. The employer allowed the employee to change positions for a while, but eventually replaced the employee with a more senior employee who sought the same position. The employer had a seniority based job assignment system whereby the more senior employees could pick and choose what jobs to work. The employee sued under the ADA, but the claim failed.

Although U.S. Airways dealt with a seniority-based job assignment system, its reasoning also would apply to any seniority based system, including an overtime system. In fact, many other cases hold that employers are not liable under the ADA for requiring employees with medical restrictions to work long hours or particular shifts. See e.g. Eibest v. Planned Parenthood. The majority of these cases hold that a person who is medically restricted from working overtime, or from working certain shifts, is not "disabled" within the meaning of the ADA. But what do you do if the employee is "disabled" as the ADA defines that term?

A recent case from the Eighth Circuit Court of Appeals held that working rotating shifts constitutes an essential job function under the ADA. Rehrs v. Iams Co. The ADA only protects employees who "can perform the essential job functions, with or without reasonable accommodation." The court noted seven factors taken into consideration in determining whether a particular job function is "essential:" (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the job; and (7) the current work experience of incumbents in similar jobs. The court reasoned that allowing a disabled employee to work a straight shift, rather than a rotating shift, "would have placed a heavier or unfavorable burden on other technicians at the facility." The court noted that under the ADA, "an accommodation that would cause other employees to work harder, longer, or be deprived of opportunities is not mandated."

In Rehrs, the court assumed, without deciding, that the plaintiff, who had diabetes, was "disabled." However, the court went on to hold that even if the plaintiff was "disabled," he was not a "qualified" individual with a disability because the plaintiff could not perform all the "essential functions" of the job. Based on the reasoning in Rehrs and U.S. Airways, it is likely that a court would hold that a bona fide seniority based overtime system constitutes an "essential job function." Therefore, employers can require medically restricted employees to work their fair share of overtime, so long as overtime is essential to the job, and allocated in accordance with seniority.

Of course, this does not mean that employers have a license to terminate disabled individuals who cannot work overtime. The ADA still requires employers to make reasonable accommodations for such people. Therefore, if an employee is medically restricted from working overtime or long hours, employers are well-advised to offer the employee some sort of accommodation that would reduce the health risk to the employee that long hours may cause. For example, allowing an employee with diabetes time to clock out, check his blood sugar, and if necessary, get some food, would reduce the health risks associated with working extra time in a day or days in a week. At the same time, such an accommodation would allow the employee to work the required amount of overtime. This way, the employer could follow the seniority based overtime distribution system, and minimize the risk of liability under the ADA.

ABOUT THE AUTHOR

Harley M. Kastner is engaged in the traditional labor practice, devoted primarily to contract negotiations, arbitration, strategic labor planning, civil rights litigation, union prevention, and supervisory training in both the public and private sectors.

Reprinted with permission from the Summer 2007 issue of kwwlaborlaw.communicator, published by Kastner Westman & Wilkins LLC.

riskVue | The webzine for risk management professionals
October 2007