ADA, Mandatory Overtime, and Essential Functions: Do These Three Ever Meet?

By Marti Cardi, JD

VP Product Compliance
Matrix Absence Management

Many employment positions have mandatory overtime, whether by regular weekly scheduling or when the press of business requires extra hours. In these situations, is mandatory overtime an essential function of the position?¹ What if an employee has a disability, and there is no reasonable accommodation to enable the employee to perform the mandatory overtime? As with most ADA issues, this determination requires an individualized, case-by-case (job-by-job) assessment. However, courts have recognized mandatory overtime as an essential function depending on specific facts of the case.

For example, in Agee v. Mercedes Benz (11th Cir. 2016), the court upheld summary judgment for the employer because it established that overtime was an essential function of the employee’s position. A team member in an automobile assembly plant, Agee brought in a doctor’s note stating that due to her medical conditions she could not work more than 40 hours per week. The employer asserted it could not accommodate this restriction permanently, arguing that overtime was an essential function of the position. The court agreed, based on these facts:

• The job description required (1) flexibility in moving between different job assignments and work schedules, and (2) being assigned different work situations as production or other needs require. Interestingly, mandatory overtime was not specifically listed in the job description!
• The job application form completed by Agee stated business needs may require overtime.
• Each team member (Agee’s position) worked an average of three hours of overtime per week, or 156 hours per year.
• The need to maintain production on multiple assembly lines required employees to work overtime even if their own line had no difficulties. (The unpredictable need for overtime could occur when a new assembly line started production, a line fell behind or broke down, or simply due to production demands.)

In analyzing whether mandatory overtime is an essential function for a particular position, considerations include:

• Does the position’s application and/or job description identify overtime or scheduling flexibility as an essential function? The employer’s judgment as to which functions are essential is accorded substantial weight.
• How regularly does the employee’s position require overtime?
• Does the position serve fluctuating production or customer service requirements that make overtime a necessity?
• What is the experience of employees who actually hold that position — historically, how much overtime does each employee on the team or in the position work?
• How significant is the overtime compared to the position’s regular schedule (e.g., four hours of mandatory overtime per month is not very significant; four hours per week may be)?
• What work is performed during those overtime hours, and how will the lack of that performance affect the employer’s business (i.e., if all the required tasks of the position are not completed)?
• What other considerations specific to the position impact overtime?

If mandatory overtime is an essential function of a position, the employer must initiate the interactive process with the employee to attempt to identify a reasonable accommodation or, failing that, develop the facts to support an undue hardship argument.² If mandatory overtime is not an essential function, the employer likely will need to honor the employee’s work restriction.

References

1. Voluntary overtime cannot be an essential function because, by its nature, it is not required of a worker.
2. Remember, the employer also will have to consider transferring the employee to an open position for which the employee is qualified, with or without a reasonable accommodation.