Is “No Overtime” an ADA Reasonable Accommodation?

By Marti Cardi, JD

VP Product Compliance
Matrix Absence Management

Unlike the Family and Medical Leave Act, the Americans with Disabilities Act (ADA) provides employers with some options and defenses in addressing a no-overtime restriction as an accommodation. Considerations include reasonableness, whether under the reduced work schedule the employee is still able to perform the essential functions of the position (is it “effective”), and, if necessary, undue hardship on the employer.

Reduced hours as a reasonable accommodation

A reduced schedule is, in general, a reasonable accommodation under the ADA. Waiving overtime is a form of reduced schedule. According to the Equal Employment Opportunity Commission (EEOC), an employer must provide a modified or part-time schedule as a reasonable accommodation (absent undue hardship) even if it does not provide such schedules for other employees. On the other hand, a reasonable accommodation must still enable a qualified individual with a disability to perform the essential functions of the position.¹

Essential functions

An employer does not have to eliminate an essential function as part of or as a result of an ADA accommodation. Nor is an employer required to lower work quality or quantity standards for the position. However, an employer may have to provide a reasonable accommodation to enable an employee with a disability to meet the standards.¹ For example, in order to enable an employee with reduced hours to maintain production standards, the employer might need to eliminate or shift some of the employee’s marginal functions as an additional accommodation. (The next article in this series will address how overtime itself may be an essential function of a job.)

Is excusing the employee from mandatory overtime an undue hardship?

“Undue hardship” means significant difficulty or expense and refers not only to financial difficulty, but to reasonable accommodations that are “unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”¹

Because cost of an accommodation will rarely establish an undue hardship for an employer — especially a large one — the focus should be on factors such as:

• Whether other workers are available to pick up the extra work due to the employee’s no-overtime restriction (consider the number of employees at the facility, in the particular or similar positions, and with the necessary skills and qualifications)
• Employer policies, staffing practices, and needs regarding work hours and overtime
• The effect of the employee’s time off on business operations, workflow, production, etc.
• The effect of the employee’s time off on other employees who will pick up the work missed due to the no-overtime restriction (morale alone is not enough):
  • Are there excessive demands on other employees’ time or efforts?
  • Are other employees unable to complete their own work?
  • Does the employee’s no-overtime restriction place any other substantial burdens on co-workers?
• If cost is a big factor, look at the resources of the particular business facility or unit as well as the company’s overall resources

Cumulative effect of multiple no-overtime employees

Can the employer consider the cumulative effect of granting no overtime as an ADA accommodation, when several other employees then request the same accommodation? No and yes. First, the employer must perform an individualized assessment with respect to each employee and consider undue hardship factors based on the current state of affairs. If just one more request ultimately creates an undue hardship, be ready to explain the operational or financial hardship experienced in denying the latest request.

References

1. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. Retrieved at https://www.eeoc.gov/policy/docs/accommodation.html