If an employee is injured and is unable to work overtime (i.e., over 8 hours in a day or 40 hours in a week), can an employer terminate the employee?  Potentially.  Employers may terminate employees who are unable to work overtime if this is an essential duty of the position.  This Friday’s Five reviews when being able to work overtime can be an essential duty of a position:

1. Disability discrimination under California and Federal law

The California Fair Employment and Housing Act (“FEHA”) makes it an “unlawful employment practice” “[f]or an employer, because of … physical disability … of any person … to discharge the person from … employment.” (Gov. Code § 12940, subd. (a)).

Similarly, the Federal ADA prohibits employers from discriminating against any “qualified individual on the basis of disability.” 42 U.S.C. § 12112.  In evaluating discrimination claims under both the ADA and FEHA, courts apply the McDonnell Douglas three-part burden-shifting framework. Raytheon Co. v. Hernandez, 540 U.S. 44, 49 (2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal.2000). Under the McDonnell Douglas test, the plaintiff must first establish a prima facie case of disability discrimination.  If established, then the burden shifts to the employer to demonstrate a “legitimate, nondiscriminatory reason” for the challenged action.  Finally, the burden shifts back to the plaintiff to prove that the employer’s asserted reason is pretextual.

2. Unable to perform “essential duties” with a reasonable accommodation

There are certain exceptions to an employer’s liability for disability discrimination. For example, an employer may discharge an employee with a physical disability or medical condition where the employee, because of that physical disability or medical condition, “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (Gov. Code § 12940, subds. (a)(1), (a)(2).)

So the question often turns then on what is an essential duty?  The identification of essential job functions is a “ ‘highly fact-specific inquiry.’ ” (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.)

Evidence of whether a particular job duty is essential includes the following:

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;
5. The terms of a collective bargaining agreement;
6. The work experience of past incumbents in the job; and/or
7. The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3); see also Cal. Gov’t Code 12926(f)(2).  In making this determination, a jury will likely look at the job advertisement and the job description for the position at issue.  The jury would also likely review past job performance to see if the employee or others in similar job position routinely were required to work overtime.  In addition, if the employee works in the position and as an accommodation initially the employer attempts to accommodate the work restriction of no overtime, did the employee perform well?  Were there any complaints from customers?  Was all work completed?

3. Overtime can be an essential function of a job

Many courts have held that an employer’s requirement that the employee must be able to work overtime can be an essential function of a job.  Therefore, if the employee is unable to work overtime, the employee cannot assert a disability discrimination claim.  For example, in Rincon v. Am. Fed’n of State, Cnty, & Mun. Employees (N.D. Cal. Aug. 13, 2013) 2013 WL 4389460 the court granted summary judgment where the plaintiff was unable to work extended hours, which was an essential function of her union organizer job.  Also, in Davis v. Florida Power & Light Co. (11th Cir. 2000) 205 F.3d 1301, 1305–1306 the court found that where mandatory overtime work was an essential function of plaintiff employee’s position, summary judgment was properly granted for the employer, an electrical company, on the employee’s disability discrimination claim (“overtime is the tool that gets that work done”).   In Tjernagel v. Gates Corp. (8th Cir. 2008) 533 F.3d 666, 673, summary judgment was properly granted in favor of the employer where plaintiff was unable to perform essential function of overtime, which was an explicit requirement according to job description.

4. Employers must engage in the interactive process

In determining whether an employee’s disability can or cannot be accommodated, the employer is required to engage the employee in the good faith interactive process.  The Department of Fair Employment and Housing sets forth that this includes the following:

• Employers must evaluate job applicants regardless of their actual or perceived disabilities. They can’t ask about the nature or severity of disabilities nor can they require an applicant to take medical or psychological exams that aren’t routinely given to other prospective hires.
• Employers may ask an applicant about his/her ability to perform job-related functions and respond to a request for a reasonable accommodation.
• Employers may (but do not have to) ask for medical certification of an employee’s or applicant’s need for reasonable accommodation.
• If there is a question of what accommodation is possible or whether it will allow an employee or applicant to do the job, employers are required to engage in a timely, good faith interactive process with the person who needs support to do a job or his or her representative. This process can clarify what job functions are essential, what accommodations are possible, and whether accommodating an employee with disability will be an “undue hardship” to the business operation.

5. Job descriptions are essential

The analysis above should make it clear to employers that written and accurate job descriptions are essential.  Job descriptions should be carefully drafted and updated on a regular basis so that they can be utilized in establishing the essential duties of a job in disability litigation.