The Eighth Circuit Court of Appeals (which hears cases in Minnesota) just decided that an employer need not reassign an employee whose disability limited him to working no longer than an 8-hour shift.
Jerry Lee Faidley began working at UPS as a package car driver in 1987, making residential and business deliveries. After suffering various injuries over the years, Faidley had hip replacement surgery in 2011. Though he returned to work the following April with no restrictions, he soon began experiencing pain in his back. Faidley returned to his physician, who issued a certificate limiting him to working no more than 8-hour shifts.
Eight Hours is Not Enough
Faidley asked that he be able to continue in his position but be assigned no more than 8 or 8.5 hours per shift. He wrote:
I really believe that UPS should put [m]e back to working the delivery driver position i have held for 25 years. During the time that i held that position i rarely had to work overtime. In fact, i regularly earned the production bonus because i completed my stops in eight hours or less. There are around 100 drivers at the Des Moines center and i am sure that any additional work could be managed by other drivers who want to work overtime. I would appreciate it if the company would reconsider its position that all drivers have to work overtime.
UPS denied this request on the grounds that the essential functions of this position including being able to work 9.5-hour days and sometimes even more. They suggested that he bid on other positions that could be performed within 8 hours, such as carwasher or porter. They also talked about the “feeder driver” job, which required working more than 8 hours a day but would not require as much walking, lifting or climbing in and out of trucks. Since all of these jobs were subject to the seniority provisions of the collective bargaining agreement, Faidley would have to follow and abide by the contractual job bidding process.
Unfortunately, Faidley was unable to obtain reassignment to any of the alternative full-time jobs either because there were no openings or because more senior employees also bid on and ultimately received those positions. UPS did offer Faidley a part-time position but since accepting the offer would affect his union seniority rights, he declined and chose to remain on medical leave.
In early 2013, Faidley was able to return to a full time loader/preloader position but experienced so much pain that he went back to his doctor, this time receiving permanent restrictions that substantially limited his ability to perform available full time positions at UPS. Faidley elected to retire from UPS in November, 2013.
Overtime is Essential
Faidley’s legal claims followed a somewhat complicated path, including union grievances, a first lawsuit alleging state law violations and then a second lawsuit under the Americans with Disabilities Act (ADA). The claims were subsequently consolidated in federal district court in Iowa, which then granted summary judgment (early dismissal) to UPS. Faidley appealed, but after receiving a partial reversal from a three-judge panel of the Eighth Circuit, the entire Eighth Circuit upheld the district court and dismissed the case in its entirety.
In dismissing the case, the Appeals Court first affirmed that UPS did not violate the ADA by refusing Faidley’s request for an 8-hour work day as a package car driver. Being able to work more than eight hours a day was an “essential function” of the position since workloads are unpredictable (especially during holiday season) and there are weather and traffic issues that can lengthen the working day almost without notice. If Faidley were to reach his 8-hour limit while still on the road, another driver would have to be dispatched to meet him or timely deliveries would not be made.
The court further concluded that the denial of the feeder position also was permissible under the ADA because again, working 9.5 hours a day was an essential function of that job. They explained that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden.” While the company did discuss the possibility of reassignment to the feeder job because it was less strenuous, this subjective opinion was insufficient to overcome the doctor’s unambiguous hours-related restriction. UPS was under no obligation to explore an accommodation that was beyond what the employee’s doctor said he could do.
Bottom Line
It is not uncommon for employees to receive medical certificates restricting them from working more than 8 hours in a day. If an employer contends that accommodation is not feasible because additional hours are or will be necessary, mere speculation will not be sufficient. As UPS did, the employer must bring forward evidence based on past performance (or in some cases a verifiable expectation of increased need in the immediate future due to business changes, seasonal patterns, etc.) in order to establish that accommodation is not reasonable or constitutes an undue hardship.