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Mailbag: An employee’s doctor says they can’t work overtime. Do we need to accommodate that?



In HR Dive’s Mailbag series, we answer HR professionals’ questions about all things work. Have a question? Send it to [email protected].

Q: An employee’s doctor says they can’t work overtime. Do we need to accommodate that?

In short, yes, according to Reliance Matrix’s Shelby Felton, director, product compliance counsel, and Armando Rodriguez, product compliance counsel. The two speakers broke down how overtime requirements intersect with the Family and Medical Leave Act and the Americans with Disabilities Act during a July 19 Disability Management Employer Coalition webinar.

Felton and Rodriguez walked attendees through the story of a fictional construction worker who, experiencing cluster headaches, presents a FMLA certificate to his supervisor stating that he cannot work overtime due to his serious health condition. Crews at the private company have mandatory overtime everyday, but the employee’s certification says that this restriction is indefinite.

A DOL opinion letter sheds some light

The U.S. Department of Labor addressed the subject in a February opinion letter. In short, the agency said, an employee who has a serious health condition that necessitates limited work hours may use FMLA to work a reduced number of hours per day for an indefinite period of time, as long as the employee does not exhaust their leave entitlement under FMLA. Leave guaranteed under state or local laws also may apply.

Even if the construction worker is part of a small crew that has seen most of its workers take FMLA leave, the worker would still be entitled to the leave. That’s because the FMLA “is not first come, first served,” Rodriguez said. “It’s a very mechanical application in the sense of, employee requests leave [and] if they’re qualified for it, they get it. There is no additional analysis.”

Employers are entitled to clear and sufficient documentation, however, and may reach out to the employee’s healthcare provider for clarification and authentication.

“If something’s unclear, you’re allowed to call the doctor and say ‘listen, what did you mean when you said this?’ But be careful,” Rodriguez said. “Tread lightly when you do that because, ultimately, we can’t ask them to add additional information to what they’ve already certified.”

Where does the ADA fit in?

The ADA’s requirements and protections are separate from those of the FMLA, Rodriguez said. Moreover, an employer cannot use the ADA to circumvent the FMLA; “an employer must allow the employee to take FMLA leave if that’s what they’re requesting,” he added.

But what happens when the construction worker experiencing cluster headaches has already exhausted his 12 weeks of job-protected, unpaid leave provided by the FMLA, but nonetheless cannot work overtime due to his health condition?

Assuming the employee’s condition qualifies as a disability within the ADA’s definition, the employer would need to assess whether overtime is an essential function of the employee’s job, Rodriguez said. Some of the questions employers could consider in making that determination include:

  • How important is overtime to the employee’s regular work schedule?
  • How often does the employee work overtime?
  • How often do other team members work overtime?
  • What type of work is being performed during the overtime, and how does it impact the business?

If working overtime is an essential function, the ADA does not require an employer to eliminate such essential functions from an employee’s job, Rodriguez said. “In this scenario, it may be better for the employee to not work at all and just shut down that one position and have somebody else work,” he added.

But the employer’s compliance obligations under the ADA do not end there. For instance, reassignment may constitute a reasonable accommodation for an employee who can no longer perform the essential functions of a given job, according to the Job Accommodation Network, but an employer has no duty to create a vacant position in order to do so.

“Basically, it’s think outside the box,” Rodriguez said. “It’s one of those situations where anything you can come up with, as a long as it’s reasonable, you can run with it as far as accommodations go.”

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