Who won this case: Can sick employee be forced to work overtime?
August 28, 2009 by Jim GiulianoPosted in: Employment law, In this week's e-newsletter, Latest News & Views, Who won?
An employee claims his chronic illness prevents him from working overtime. His supervisor refuses to accept the reason, and the employee uses. Who won this real-life case?
The scene:
“And so the doctor says I’m going to have to stick with a permanent eight-hour schedule to keep my blood sugar on an even keel,” Frankie explained to his supervisor, Lisa.
At hearing the news, Lisa rocked back in her chair and let out a deep breath as she spoke: “That’s going to be a problem.
“I agreed to let you go on an eight-hour schedule temporarily to see if it would help straighten out your diabetes. But with that big new customer we just signed, I’m expecting everyone – and I do mean everyone – to work overtime.”
“I’d love the overtime,” Frankie countered. “But it’s a choice between money and my health.”
“OK,” Lisa nodded, “then maybe I can get you transferred to maintenance. They’re about the last group still working only eight hours a day.”
“That’ll mean an hourly pay cut,” Frankie said. “I can’t live with that, either.”
OT required
Frankie continued to refuse the transfer. After he was fired, he insisted in a lawsuit that the company had accommodated his health problem and should continue to do so – by letting him stay in his job and not requiring him to work overtime.
The company said OT was a mandatory part of the job, and asked a judge to throw the case out of court.
Did the company win?
Yes, the company won when a judge dismissed the case.In doing so, the judge explained that, yes, diabetes qualifies as a legitimate disability and any employee who suffers from it is eligible for a reasonable accommodation.
However, the judge also noted that reasonable accommodation doesn’t translate to any accommodation the employee desires.
When the supervisor established that overtime was a crucial part of job, that meant refusing to work overtime couldn’t be under the accommodation umbrella. Plus, the company had offered the employee a job that fit his schedule.
And what about the fact that the supervisor had allowed the employee to work a limited schedule on a temporary basis? That, the judge said, didn’t commit the company to keeping the schedule permanently.
‘Essential functions’
The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with qualified illnesses or injuries.
The Act states, however, that the employee must be able to perform the “essential functions” of the job – usually those demanded of other employees in similar positions.
[Based on: Rehrs v. The Iams Co.]
Tags: accommodation, americans with disabilities act, overtime
August 31st, 2009 at 2:52 pm
OH YES FINALLY A JUDGE WITH THE CORRECT DECISION. I BET HE WAS NOT FROM A CALIFORNIA COURT. ESSENTIAL FUNCTIONS OF JOB –KEY WORDING. AGAIN KUDOS TO YOU JUDGE.
September 1st, 2009 at 10:35 am
I can see both sides of this one.
At the moment, I am trying to deal with a health issue that requires I take some intermittent FMLA leave for doctor’s visits and treatments as well as work less hours per day than my normal 10 to 11. I am dealing with a difficult electrolyte imbalance that, when it gets really bad, has caused me to have to be taken by ambulance to the ER for an IV of (mainly) sodium and potassium. I have come close to death a few times (very frightening), been unable to stand or walk many others and have been extremely weak and unproductive at times. It’s a very frustrating situation for me because I’m used to being a high performer who didn’t let anything get in the way. I’ve been able to mentally bull through, but I can’t do that right now, which is baffling and crazy-making. I’m working as much as I possibly can and still managing to get things done, but I feel like a wimp and a slacker because I can’t perform like I used to. If my employer refused to work with me during this difficult time, I would be devastated…mentally, emotionally and physically.
In my well-over-20-year career in HR, I have run across very few cases where OT was actually an essential job function. If it truly is critical to the position, then I can see where accommodation of an 8 hour per day schedule would be a hardship. In my experience, there have always been people who loved working OT and those who didn’t want to work it under any circumstances. Regardless of the company where I’ve worked, we’ve rarely had a problem covering because there has always been a solid core group who wanted as much OT as they could get. We’ve never had to resort to mandatory OT. But every position and company is different. Evidently, it was determined to be an essential job function for logical reasons and was therefore a hardship for the company to accommodate in this situation. The worker should have been more open to transferring to a position where his health needs didn’t present a difficulty for his employer. But I do feel for him because the transfer to an undesirable job that paid less would be hard to take and I’m sure it would make him feel more negatively about himself because he couldn’t perform the way he was used to performing.
I’ve always been a person who believed in being as compassionate and flexible as possible, so long as it didn’t hurt the company. Now that I’m needing some compassion and flexibility, I can honestly say I’m glad I have taken this approach throughout my career. I have a new level of understanding of how much it is appreciated when your life and health are truly at stake. I have every reason to believe they will discover what is causing my problem and that I’ll soon be running at 100% again, but I’ll never forget what it’s like on this side of the fence and will continue to attempt to accommodate an employee when they are going through difficult situations as long as it doesn’t cause an undue hardship on my company.
September 8th, 2009 at 4:53 pm
In response to R.B.
I do think most companies make accomodations when they can. I have worked for companies where long hours are required at crucial deadline moments – I would not have been kept on if I could not work OT.
If the worker in the article were to have filed for FMLA, he would have been treated a little differently than claiming a disability. Even though I would have liked to see compassion, I think the judge ruled correctly in this case.
September 9th, 2009 at 10:54 am
If overtime was needed from all employees on a continual basis, perhaps the proper solution would have been to hire additional staff.
September 11th, 2009 at 8:07 am
While I agree with the judge’s decision I do find fault in the company for not looking for long term solutions. Carol made a key observation about hiring additional staff but there is a point where the costs of additional staff (salaries, insurance, benefits) do not offset the saving from not working overtime. Depending on your cost model it may be more profitable to work 10 hours of OT each week than to hire additional staff. Being in manufacturing we can look at our capacity models to calculate the expected hours of work to complete orders. In another setting this may be more difficult. We are working 5 to 10 hours of OT each week and it is cheaper to do this than to hire additional employees. Beyond that we will need to look at hiring. The article didn’t say if the employee qualified for FMLA but this could have been a helpful solution if he did. BUT if the person works their 40 hours per week then claims 10 hours per week under FMLA, their 12 weeks of FMLA time will run out after 11 months, so even then the company could terminate them because the employee has exhausted there allotted annual 12 weeks of FMLA time. Everyone has made some very good comments and it pleases me to hear most feel that compassion from the company was missing. There is hope, keep the faith and the good words coming.
September 11th, 2009 at 12:43 pm
Maybe the company did everything legally, but compassion was certainly lacking. As R.B. says, until you yourself are in the position of being the employee who needs special consideration, you can’t truly understand what it feels like.