DOES AN EMPLOYEE’S INABILITY TO WORK OVERTIME CONSTITUTE A DISABILITY?
Recently, the Fourth Circuit Court of Appeals addressed the question of whether, under Pre-ADAAA jurisprudence, an employee is not substantially limited in the major life activity of working if he or she can work a 40-hour workweek, but is not able to work overtime because of a physical or mental impairment.
In Boitnott v. Corning Incorporated, the plaintiff, Michael Boitnott, was diagnosed with leukemia while on medical leave from his employment with Corning as a maintenance engineer. Although his leukemia was asymptomatic and did not require treatment, Boitnott was advised by his physician to limit his work hours to no longer than eight hours per day and 40 hours per week. Accordingly, Boitnott informed Corning when he was prepared to return to work that he would be unable to return to his regular work schedule as a maintenance engineer, which consisted of 12-hour shifts and required overtime. He either sought that reduced schedule, or a position that required only an 8-hour straight shift. At that time, however, the only open positions at Corning required 10-hour shifts and some overtime.
Because Boitnott was capable of working a normal eight hour day and 40 hour week, Corning felt that he was not disabled under the Americans with Disabilities Act (“ADA”), and therefore, did not accommodate his request for a reduced schedule. Boitnott responded by filing a charge of discrimination against Corning with the Equal Employment Opportunity Commission, alleging that the company failed to provide reasonable accommodation for his disability as required by the ADA. The EEOC felt there was reasonable cause to believe a violation of the ADA had occurred, and Boitnott filed suit soon thereafter.
The district court ruled in favor of Corning, concluding that Boitnott was not disabled under the ADA. The court considered whether Boitnott’s asymptomatic leukemia substantially limited him in the major life activity of working, but found that Boitnott’s inability to work overtime did not significantly restrict his ability to work in a broad range of jobs. On appeal, the Fourth Circuit affirmed the district court’s decision, joining the view of the First, Third, Fifth, Sixth, and Eighth Circuits in holding that the inability to work overtime does not constitute a substantial limitation on a major life activity under the ADA.
Although this outcome was a good one for Corning, employers should be careful not interpret the Court’s decision as completely absolving employers from the obligation to accommodate an employee’s inability to work overtime in all instances. The Fourth Circuit decided Boitnott under the law as it existed prior to the 2008 Amendments to the ADA, which became effective on January 1, 2009. Under the ADAAA – which significantly broadened the definition of disability – an employer who acts hastily to deny an employee’s request for accommodation to address an inability to work overtime could very well face liability.
In Boitnott, the plaintiff had to resort to attempting to prove disability based upon a substantial limitation on his ability to work since his leukemia was asymptomatic and he was unable to prove that he was substantially limited in any other major life activity. Now, based on how the revised regulations to the ADA define disability, it is very likely that an employee with a health condition like leukemia will be able to prove that he or she is disabled by showing substantial limitation of a major life activity other than working, even if the disease does not cause symptoms. Of course, there still remains the issue of whether the employee is “qualified” if overtime is an essential function of a position.
Since that issue has not yet been resolved by post-ADAAA litigation, and since the contours of the ADAAA in general are still being fleshed out in the courts, employers should certainly consider consulting competent legal counsel when dealing with any accommodation question.