Wrestling with ADA, FMLA, and Overtime: No Overtime as an ADA Accommodation

Tasha Patterson@Work

Addressing the Request for No Overtime as an ADA Accommodation

No Overtime as an ADA AccommodationBy Marti Cardi, JD

VP Product Compliance
Matrix Absence Management

How do employers assess an employee’s request for no overtime as an accommodation under the Americans with Disabilities Act (ADA)? Here are the steps to follow.

1. Before a “no overtime” request comes in:
  • Identify employment positions that are prone to overtime regularly or seasonally.
  • Assess whether overtime is mandatory or voluntary. If voluntary, it cannot be an essential function. Even mandatory overtime might not be an essential function of the employee’s position. Policies should state that overtime is mandatory, and procedures for requiring overtime should include negative consequences under attendance policies for missing overtime.
  • Assess whether the mandatory overtime is an essential function of the position. See 29 C.F.R. §2(n)(3) and the September 2017 article in this series. Be able to articulate the business needs that make overtime an essential function.
  • Review job descriptions and job postings to ensure mandatory overtime is identified as an essential function.

2. Engage in the interactive process with the employee.

Even if mandatory overtime is an essential function of a position, you must still go through the interactive process. Every employee’s disability, and the limitations or restrictions it imposes, are different. Don’t make accommodation decisions based on assumptions about the employee’s condition or its limitations.

3. Even if overtime is not an essential function:

Analyze whether the no-overtime restriction is a reasonable and effective accommodation. A modified work schedule is generally a reasonable accommodation, but will the no-overtime restriction enable the employee to perform the essential functions of the position?

4. Obtain medical information if needed.

A medical inquiry is permissible under the ADA when the disability or the need for the accommodation is not known or obvious. When an employee requests no overtime as an accommodation the disability may be known or obvious, but it is unlikely that you as the employer will be able to assess the need for and effectiveness of the no-overtime restriction. Get medical information from the employee’s own provider and, if appropriate, from a provider you select and pay for.

5. Consider other accommodations that might enable the employee to work overtime:
  • On-the-job accommodations (e.g., breaks to reduce stress, sound reduction headphones to reduce migraine or distraction factors, etc.).
  • Shift the time or manner that essential functions (other than overtime) are performed. Can the essential functions be performed at different times with little or no impact on the operations or the ability of other employees to perform their jobs?
  • Assignment to an alternative vacant position with no overtime or where the employee can better perform overtime. The goal is to keep employees in their own position. Transfer is required only if (1) there are no effective accommodations to enable the employee to perform the essential functions of their position, or (2) all other accommodations would impose an undue hardship.
    • Leave of absence, if the employee’s no-overtime restriction will resolve with time off.
    • Contact the Job Accommodation Network for more accommodation ideas.
6. If accommodation attempts fail and the mandatory overtime is not an essential function:

Determine if excusing the employee from overtime is an undue hardship.

  • Focus on operational difficulties, performance requirements, etc., not cost (except in extreme cases).
  • Look at the big picture — the requirements of the position at issue and needs of the business overall, not just the effect of one employee being excused from overtime.

See the July 2017 article in this series for “undue hardship” details, and the EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA.