United States: Eighth Circuit Affirms Working Overtime Can Be Essential Job Function

Last Updated: September 23 2019
Article by Michael Correll and Chalyn M. Kaufman

Overtime work is essential in many industries. As a result, employers frequently structure job roles to require mandatory overtime. Although mandatory overtime can present difficult questions when an employee has a disability that disqualifies them from working overtime, the Eighth Circuit Court of Appeals, in McNeil v. Union Pac. R.R., No. 18-2333, recently confirmed that overtime work can be an essential function of a job in appropriate circumstances.

In McNeil, the Eighth Circuit evaluated whether Union Pacific could lawfully terminate a disabled emergency dispatcher who could no longer perform the mandatory overtime required of all Union Pacific emergency dispatchers. The plaintiff brought suit against Union Pacific following her termination and alleged disability discrimination under federal and state law. In the district court, Union Pacific moved for summary judgment arguing that the plaintiff was not a qualified individual with a disability because she was unable to perform an essential function of the position due to her inability to work overtime. The district court agreed, and granted Union Pacific's motion.

On appeal, the Eighth Circuit affirmed the district court's decision that the plaintiff's ability for overtime work was an essential function of her job as a dispatcher. In doing so, the Eighth Circuit emphasized the authority of an employer to establish the essential functions of a job. To defeat a "failure to accommodate" discrimination claim, an employer must prove that the function at issue is, indeed, essential. Notably, the district court in McNeil relied on the company's clear scheduling and attendance policies, which expressly articulated that overtime work is "mandatory." The McNeil court also highlighted the public safety concern of always having a capable dispatcher ready and on duty. If plaintiff were permitted to avoid working overtime on an ongoing basis, then that burden would fall on another dispatcher to absorb. Such a situation, the court reasoned, could create a public safety risk.

Importantly, the Eighth Circuit stressed that a temporary agreement to excuse an essential job function does not render that function non-essential. The plaintiff previously asked Union Pacific for an accommodation for a short period and Union Pacific granted the temporary accommodation. However, Union Pacific's decision to temporarily excuse an essential job function exceeded its obligations under the law. Accordingly, this short-term accommodation did not defeat the employer's assertion that the job function was essential. The Eighth Circuit explained that "[t]he request for a permanent or indefinite accommodation presented a different and greater burden on the company." Thus, Union Pacific's prior accommodations of the plaintiff's temporary requests did not automatically waive essential function status.

Finally, the plaintiff argued that mandatory overtime was not an essential function of her position because Union Pacific permitted other employees to refuse overtime work. The court found that the comparator employees to which the plaintiff referred were able to work at least some overtime or only sought to be temporarily excused from working overtime; the plaintiff, however, was not able to work any overtime for an indefinite period. Accordingly, the court concluded that "Union Pacific's accommodation of the other employees thus does not undermine its position that ability to work mandatory overtime is an essential function."

Taken together, McNeil stands for the proposition that overtime can be an essential function of a job under the proper circumstances, and it underscores the importance of clearly articulating and consistently enforcing essential job functions. At the same time, Union Pacific's careful and comprehensive anti-discrimination policies and interactive process efforts contributed to its success. The McNeil decision should remind employers that both establishing clear job functions and earnest engagement in the interactive process are essential to satisfying Americans with Disabilities Act obligations while also meeting business needs.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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