Inability to Work Unpredictable, Unscheduled Overtime Renders an Individual "Not Qualified" for ADA Purposes
Posted on 09/17/2019 at 01:43 PM by Russell Samson
The title may be in error: It is not a generally true statement in all circumstances.
The plaintiff in the Eighth Circuit’s August 26, 2019, opinion in Tasha McNeil v. Union Pacific Railroad Co., No: 18-2333, provided her employer, Union Pacific, with a letter from her doctor stating, “It is my professional medical opinion that Tasha MCNEIL may return to work on 9/02/2014. Please allow her only morning shifts and no overtime.” Union Pacific subsequently notified her that it had not been able to identify a reasonable accommodation which would permit her to return to work in her assigned position, and that there were no vacancies in the call center to which she was assigned. That was in September 2014. McNeil went on long-term disability, and so remained in an “employee” status. In October 2015, when the LTD benefits expired, Union Pacific terminated the employment relationship. McNeil sued on a variety of theories, including violation of both the Americans with Disabilities Act and the Nebraska Fair Employment Practices Act for unlawful discrimination based on disability.
The case reached the Eighth Circuit Court of Appeals on an appeal from the federal district court’s grant of summary judgment to the employer. The district court determined that McNeil, “was not qualified for the dispatcher position as a matter of law, because she was unable to work mandatory overtime . . .”.
In affirming the district court, the unanimous three-judge panel of the Eight Circuit began its opinion with a description of the job McNeil held:
She worked as a critical call dispatcher in the company’s 24-hour dispatch call center. As a dispatcher, McNeil was responsible for “[r]espond[ing] timely and with a sense of urgency to incoming phone calls related to critical incidents on or near railroad property to ensure employee and public safety.”
Union Pacific dispatchers are typically scheduled to work five consecutive days each week. Each workday consists of an 8.25-hour shift. Only one dispatcher is allowed to leave the center at a time, and dispatchers are not allowed to end their shift until they are relieved by the next shift’s dispatcher. They are expected to remain to resolve ongoing calls even after their shift has ended. A dispatcher’s shift is color-coded to represent overtime expectations for the employee. Depending on which color shift the dispatcher is scheduled to work, the dispatcher may be expected to work overtime if another employee fails to show up to work. In that situation, a dispatcher is required to work up to four additional hours either before or after her original shift.
Under the ADA (and apparently Nebraska law as well), a person is protected if s/he has a disability but “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Here, the “essential function” asserted by Union Pacific was the ability to work some overtime: McNeil’s doctor’s “professional medical opinion” was “no overtime.”
At 29 CFR § 1630.2(n)(3), the EEOC has a non-exclusive list of evidence that can be considered in determining whether a particular function is essential. The Eighth Circuit generally looks at the identified factors, nonexclusively. In Dropinski v. Douglas County, 298 F.3d 704, 707 (8th Cir. 2002), the Eighth Circuit listed as relevant factors, “(1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.”
While the McNeil opinion does not tell us the number of employees who worked at a specific time of day in the 24-hour critical call dispatch center, or what geographic area the center may cover, it appears clear that Union Pacific let people know that this was not an “eight and done” job. The posted schedule told each employee the outside parameters of the hours when s/he might have to work; each employee understood s/he could not leave until the next shift scheduled dispatcher relieved her/him – and even then, the employee cannot leave if s/he is needed to resolve ongoing calls. Again, the position exists to, ”timely and with a sense of urgency [respond] to . . . critical incidents . . . to ensure employee and public safety.” The Eighth Circuit panel in McNeil appeared to recognize that while “overtime” may not be the daily norm (in the sense of looking at the amount of time spent on the job performing the function), the consequences of not having the ability to work overtime should the need arise would be the job not being done as envisioned.
Lesson number one for employers – in considering whether the ability to work overtime is an “essential function,” look to the reason the job exists, and the consequences of not having someone to work the mandatory overtime. And make sure that information is conveyed to employees.
There are some other lessons for employers in the panel’s discussions of other issues presented in the appeal:
McNeil contended that Union Pacific “misread” the doctor’s statement on no overtime – that it was a temporary restriction. When she told Union Pacific that it was meant to be temporary, Union Pacific told her to get a statement from the health care provider clarifying his opinion. Union Pacific never got anything additional. So employers: (1) rely on statements from health care providers, not what an employee may tell you what the employee was told by the health care provider; and (2) do not waste your time calling the employee’s health care provider. With HIPAA laws, unless one is dealing with a workers’ compensation situation (at least an Iowa workers’ compensation situation under current Iowa law), the health care provider most likely will not talk with you. If, as was true with McNeil in this case, the employee doesn’t provide medical information to back up the employee’s statement, an employer should not “guess” or “perceive.” Here, Union Pacific was told “no overtime” – and it was upon that written statement that Union Pacific based its action.
McNeil pointed to three individuals in the same position to which she was assigned who had restrictions such that they could not work up to four hours of overtime as was typically expected in the position, but which Union Pacific “accommodated.” The Eighth Circuit panel concluded that the fact Union Pacific was able to accommodate persons with limited ability to work overtime did not undermine its contention that an ability to work some overtime was an essential function. While there is clearly a distinction between an inability to work any overtime, and restrictions on how much or how often, employers should be mindful that any “accommodation” made to restrictions on overtime will result in a critical examination of the claim that overtime is “essential.”
Finally, McNeil pointed to the fact that early in her chain of absences, Union Pacific was prepared to accommodate a clearly temporary two-month restriction capping the hours she could work in a day. McNeil in fact did not actually return to work, so there was no experience on how the temporary accommodation would have worked. But, McNeil asserted, the fact that Union Pacific was willing then to make an accommodation is evidence that an ability to work overtime is not really an essential function. Citing the Eighth Circuit decision in Rehrs v. Iams Co., 486 F.3d 353, 358 (8th Cir. 2007), the panel in McNeil said that, “[a]n employer does not concede that a job function is ‘non-essential’ simply by voluntarily assuming the limited burden associated with a temporary accommodation, nor thereby acknowledge that the burden associated with a permanent accommodation would not be unduly onerous.” That may be “the law” in the Eighth Circuit today, but an employer which is considering making an accommodation temporarily excusing performance of an essential function needs to consider the ramifications – including how long “temporary” may be. It also needs to monitor the time period. If the temporary accommodation will work for two months, and the health care professional comes back “we need two more months,” how does an employer respond? And two months later, “just another month”?
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