Eighth Circuit Again Says Overtime Restriction Need Not Be Accommodated

  • Aug 27, 2019
  • ADA
  • Dennis J. Merley

The Eighth Circuit Court of Appeals (which includes Minnesota) has just reminded us that under the right circumstances, the ability to work overtime can be an essential job function that need not be accommodated.

Tasha McNeil was a critical call dispatcher in the Union Pacific Railroad’s 24-hour call center. Dispatchers respond to calls about incidents on or near railroad property that might impact the safety of employees or members of the public.

Work Shift Includes Overtime

In order to maintain continuous coverage in the call center, dispatchers are not allowed to end their shift until the next shift’s dispatcher arrives.  They also must remain beyond shift’s end if they are on a call or are otherwise actively working to resolve an issue.  At times, dispatchers have to work up to four hours of overtime if another employee fails to report for work.

In February 2014, McNeil went on short-term disability leave. She was cleared by her doctor to return to work in June on a part-time basis working four shifts per week from 6:00 a.m. to 2:15 p.m.  She could then return to a full time schedule in August. The company arranged to accommodate this restriction but McNeil opted instead to remain on out on leave.

In August 2014, McNeil submitted medical paperwork verifying that she could return to full time work on September 2. Her physician wrote, however, that she should work “only morning shifts and no overtime.” The paperwork did not indicate any specific duration to this restriction but McNeil verbally assured the company that it would last only until January.

In response to the paperwork, the company sent McNeil a letter stating that they could they were not able to accommodate her at that time.  McNeil called a company manager to find out why she could not return since her restriction was temporary. The manager responded that the paperwork did not specify how long the restriction would remain in place and that she would have to submit an updated medical verification stating that it was temporary. McNeil never submitted the suggested verification and after her long-term disability benefits ended in October 2015, she was terminated.

Employee Says Overtime Not Essential

McNeil sued in federal court alleging various claims, including discrimination in violation of the Americans with Disabilities Act (ADA).  The lower court dismissed, finding that the ability to work overtime was an essential function of the dispatcher position.  The job was specifically designed to insure adequate staffing such that relieving McNeil from the overtime requirement would either have forced co-workers to put in excessive overtime or would have left the call center understaffed.  Either way, the accommodation would present a heightened safety risk.

McNeil appealed to the Eighth  Circuit Court of Appeals on the following grounds:

 – Since the company had been willing to accommodate her inability to work overtime on a temporary basis in May of 2014, the overtime requirement obviously was not an essential job function;

– Her restrictions were temporary and therefore could have been accommodated;

– Other employees were not terminated despite the inability to work overtime; and

– The company failed to engage in an interactive process to obtain complete medical information and/or examine other job placement as an accommodation.

Court Finds Undue Burden

The Eighth Circuit affirmed the lower court’s dismissal of the case, explaining first that the willingness to grant a temporary accommodation does not undermine an employer’s contention that granting the same accommodation on a permanent or indefinite basis would pose an undue burden.  Therefore, the company’s offer to accommodate McNeil’s reduced schedule for two months did not mean that their refusal to do so on an ongoing basis was unreasonable.

The court paid no regard to McNeil’s contention that her restrictions were temporary.  They observed that the medical paperwork did not support this contention and she never complied with the company’s suggestion that she submit updated, clarifying medical documentation. Thus, the company was entitled to interpret her restrictions as indefinite.

The court also rejected McNeil’s claim that the overtime requirement could not be an essential job function because other employees were accommodated despite restrictions on overtime.  The court explained that the three employees that McNeil referenced could all work some overtime.  One employee was able to work “an occasional 12 hour shift” while another could put in “10 hour days as tolerated.” A third was restricted to “[o]ccasional (up to 33% of the time) early call in or overtime.” Thus, all three could be counted on to finish end-of-shift calls and occasionally come in early or stay late until their replacement arrived.  McNeil, on the other hand, could do no extra work, thereby presenting a very different and more burdensome accommodation issue.

Finally, the court rejected McNeil’s argument about the interactive process, noting first that it was she who failed to interact effectively by not taking the necessary steps to update her medical documentation to advance the communication between her and her employer.

In addition, they found that the record did in fact reflect that McNeil had been referred to the company’s “Disability Prevention and Management Team” which would help her learn about other vacancies within the company and assist her in applying for them. Since McNeil never followed up on this referral, she could not credibly claim that the company was non-responsive

Bottom Line

As we previously reported in Court Says Accommodation Not Required For Employee Who Can’t Work Overtime, the ability to work overtime can be an essential job function for which accommodation is not needed. To make that case, employers must (as the Union Pacific did in this case) make a compelling argument that overtime is critical to the job’s effectiveness.  Moreover, the need to work overtime should be included in job descriptions and recruitment materials.

In the right case, this defense will carry the day.