But, working overtime must be an essential function of the job. Here’s an example from a recent Fifth Circuit decision.
The plaintiff worked as a detention officer. One of the requirements for the job of detention officer was to “work overtime as required,” including “up to sixteen (16) hours within a rolling 24-hour period.” Indeed, the plaintiff occasionally had to work ten, twelve, fourteen, or sixteen-hour shifts straight in a rolling 24-hour period.
During his employment, the plaintiff developed severe obstructive sleep apnea. Twice, he fell asleep at the wheel after working a 16-hour shift. So, his doctor medically restricted him from working longer than 12 hours, and the plaintiff sought a corresponding accommodation from the defendant.
The defendant responded by placing him on administrative leave without pay to determine if an accommodation was possible. It wasn’t. So, it fired the plaintiff, who promptly sued for disability discrimination under the Americans with Disabilities Act.
There was no question that the plaintiff had a disability, but was he qualified to perform the job? If not, his lawsuit stands no chance.
To be qualified for the job, a plaintiff must be able to do the essential functions with or without a reasonable accommodation. That begs the question: Is working 12+ hour shifts an essential function of the detention officer job? Both the lower court and the appellate court agreed it was.
And it wasn’t close. Here’s why.
The text of the ADA and the EEOC’s regulations emphasize that the employer’s judgment as to what functions of a job are essential, especially when backed by a written description, is strong evidence of the essential functions of the job.
In this case, the job description contained minimum requirements that specified that detention officers needed “to work overtime as required” and to “work up to sixteen (16) hours within a rolling 24-hour period.” The defendant’s procedure manual further stated that “a supervisor can and will require you to work overtime without notice . . . such that you may be required to work a maximum of (2) consecutive eight (8) hour shifts in a day.” The collective bargaining agreement further confirmed that “the availability to work overtime is an essential function of full-time Officers.” The plaintiff further acknowledged working “up to sixteen hours a day” approximately “three to four times a month.”
Still, the plaintiff disagreed that working long hours occasionally was essential to the position. But, his say-so didn’t carry weight with the court. Otherwise, “every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer exempt an essential function think they can work without that essential function.” Since the plaintiff did not dispute that he could not work 16-hour shifts, and working those longer shifts was essential to the job, the defendant did not have to accommodate his disability with permanently shorter shifts.
In this particular case, the plaintiff only requested shorter shifts. However, your mileage may vary in your workplace when employees with disabilities request accommodations. Just remember that the ADA requires a good-faith interactive dialogue in which an employer remains receptive to other possible accommodations (e.g., transfers, light duty, flexible schedules) that will enable the individual to continue working. Employers that remain closed off to alternatives often defend those poor choices in court.