Roy’s Analysis of Quirky Question # 185; Accommodating a Disabled Employee Who Only Can Work a Partial Shift

Quirky Question # 185: 

We run a manufacturing company.  We are fortunate in that, despite the difficult economy, our products remain in high demand.  One of our employees has a couple of related disabilities, the consequence of which is that he only can work a maximum of 8 hours each day.  In the past, we have been able to accommodate this limitation.  But, given the ever-increasing demand for our products, we have had to convert from 8-hour shifts to 12-hour shifts on all of our production lines.

Our employee has asked us to accommodate him further by allowing him to work just 8 hours each day.  We don’t think that would be fair to our other employees, all of whom have to work 12-hour shifts.  We also think it would be unfair to force us to incur the additional expense associated with this requested accommodation.  What’s your reaction?  Do we have to accommodate this employee by allowing him to work just 8 hours per day?

Roy’s Analysis: 

My first thought is that your company deserves congratulations.  It’s wonderful that your firm has been able to increase sales of your products in the difficult economic conditions of the last several years. 

Although I cannot provide you complete assurance regarding your treatment of your employee, there are reasons for your company to be quite optimistic about your position.  Initially, I like the backdrop facts that you have shared in part.  As you describe, your employee has had a disability for some time.  Even more important, your company has been accommodating your employee’s disability by agreeing not to ask him to work more than 8 hours each day.  This demonstrates that your firm did not discriminate against your employee when you discovered his physical limitations. 

These facts would be enhanced even further if your company hired this individual knowing of his disability.  Similarly, the longer the period you employed him while accommodating his disability, the more persuasive your arguments that your company does not discriminate against employees with disabilities and that your organization attempts to accommodate persons who need an accommodation to perform the essential functions of the job.

Due to your company’s success and the resulting demand for your products, however, it is apparent that the accommodations you have offered in the past (basically, limiting the employee’s workday to just 8 hours) no longer will suffice.  With your new requirement of 12-hour shifts, your employee seemingly will not be able to perform the essential functions of the job.  The job requires 12 hours of work; with an 8-hour limitation, your employee will come up four hours short each day.

As you may know, the basic analytical structure of a failure to accommodate disability discrimination case has four elements.  A plaintiff must show that: a) he has a disability; b) he is a “qualified disabled person;” c) the employer knew of the disability; and d) the employer failed to make a reasonable accommodation of the disability.  Here, you acknowledge that your employee is disabled.  Moreover, your company knew of the disability (and, in fact, have been accommodating it for some time).  Consequently, the potential battleground, if this dispute evolves into litigation, will be the second and fourth elements referenced above.

To determine whether an individual is a “qualified disabled person,” courts examine whether the employee can perform the essential functions of the job.  The EEOC has promulgated regulations to assist employers and employees alike to evaluate whether a job requirement constitutes an “essential function” of the job.  These variables include: 1) the employer’s judgment as to which job functions are essential; 2) the content of the written job descriptions relating to the job; 3) the amount of time spent on the specific function in question; 4) the consequences associated with not compelling the employee to perform the function; 5) the terms of the collective bargaining agreement (if any); 6) the past work experience of other employees in the same job; and 7) the current experience of other employees in the same or similar jobs.  See 29 CFR § 1630.2(n)(3).

Here, an analysis of these factors would appear to support your company’s position that working a 12-hour shift is an essential function of the job you would like this employee to perform.  Many courts have reached this same conclusion, finding that an employer’s standard shift schedule is an essential job function. See, e.g., Rehrs v. Iams Co., 486 F.3d 353, 357 (8th Cir.2007 (rotating shift schedule is an essential function); Kallail v. Alliant Energy Corp. Servs., Inc., 2011 WL 1833347, at * 12-13 (N.D. Iowa 2011) (rotating, 12-hour shift, was an essential function of job); Tompson v.Dep’t of Mental Health, 924 N.E.2d 747 (Mass. Ct. App. 2010) (8-hour shift was essential function). As the Eighth Circuit pointed out in Rehrs, “[i]t is not the province of the court to question the legitimate operation of a production facility or determine what is the most productive or efficient shift schedule for a facility.” Rehrs, 486 F.3d at 357-58.

Further, the fourth element (did the employer failure to make a “reasonable accommodation”) of the failure to accommodate analysis also supports your position that the employee needs to work the full 12-hour shift.  When evaluating whether an employer can make a reasonable accommodation of an employee’s disability, courts examine whether the proposed accommodation would cause an “undue hardship” to the employer.  Here, you should be able to present persuasive evidence that an accommodation that would result in your employee working only two-thirds of the standard shift (8 of the 12 hours) would constitute an undue hardship for your company.

As you point out, were your firm to continue to employ this individual and continue to allow him to work just eight hours daily, you would  have to determine how to cover the four-hour gap.  You undoubtedly have considered a few possible alternatives.  First, you could ask your other employees to work extra to cover the four-hour gap.  But, that might require another employee to work 16 hours (the original 12 hour shift, plus the four additional hours), a schedule that will require your company to expend additional resources for overtime compensation.  Moreover, when employees are working 16 consecutive hours, work quality is likely to deteriorate. 

Second, your company could hire a new employee to cover the extra four hours per day, employing that individual 20 hours per week. Even assuming your firm could find an employee willing to work only 20 hours per week, here too there clearly will be additional expense for your company (recruiting, hiring, training, and potentially, significant benefits). 

Third, another accommodation your company might consider would be to provide your employee an indefinite leave of absence.  Any number of courts have accepted short-term leaves (sometimes as long as a year) as a reasonable accommodation for an individual with a physical or mental impairment.  But, here too, the accommodation is not without costs.  Your firm would have to hire a “temporary” replacement, perhaps for a prolonged period.  Again, hiring and training employees is expensive, especially if the expectation is that this person will not be employed for a lengthy period.  Moreover, this type of accommodation presumes your employee’s disability will improve as a result of the time away from work and as a result of the leave, he later will be able to work the 12-hour shifts.  Here, it sounds as though your employee already has had the 8-hour workday limit for a lengthy period of time.  If there is little prospect of improvement in your employee’s condition and time away from work is unlikely to increase the chances that he will be able to work a longer day, this accommodation may be pointless.

Further, when considering each of the three alternatives above, it is not just the financial consequences that should be assessed when considering “undue hardship.”  The impact on employee morale, the effect on other employees (some of whom may not be too thrilled with having to work 12-hour shifts), and other intangibles also are part of the undue hardship calculus.

The bottom line is that the various hypothetical solutions to this problem would likely cause your company an undue hardship.  Couple that fact with the judicial analyses that schedules or shifts constitute an essential function of the job, and your firm should not have much to worry about.  In sum, your company should be able to require your employee to work the full 12-hour shift.  If you have to terminate your employee because he is unable to do so, your company should not be exposed to liability on a failure to accommodate theory.  Whether you will be able to persuade your employee of that fact before he proceeds with a lawsuit is a question, however, about which I can offer few insights.

Jillian’s Analysis of Quirky Question # 176: Obesity, Disabilities and the ADAAA

[Readers:  The analysis of Quirky Question # 176 was provided by my colleague, Jillian Kornblatt.  If you have any questions about her analysis, please don't hesitate to contact Jillian at 612.492.6156, or at kornblatt.jillian@dorsey.com.  We hope you find the discussion below helpful, both with respect to the assessment of obesity as a disability and in terms of understanding the new requirements of the ADAAA.  Regards, Roy]

Quirky Question # 176:

We run a full-service lakefront resort, and our prime season is starting this month. We are open year-round, but increase our staff size significantly each summer by re-hiring many employees who return each year. One of our long-time summer waiters, who has always been a bit overweight, arrived this year heavier than before and unable to fit into the largest size available of our required uniform for waiters. She has asked us if she can wear something else. We questioned whether her weight gain was from a medical condition, and she told us it isn’t, but her doctor said she was “severely obese.” She’s always been an efficient and well-liked waiter, but it’s important that our waiters wear the same uniforms so our customers can easily identify staff while using our recreation areas. Can we refuse to hire her this year because she can’t fit into our uniforms?

Jillian’s Analysis:

This question is a summer-vacation inspired twist on Revolinski v. Amtrak, an obesity-based disability discrimination case that was decided on May 24, 2011 – the same day the Equal Employment Opportunity Commission (EEOC) regulations under the Americans with Disabilities Act Amendments Act (ADAAA) went into effect. 2011 WL 2037015 (E.D. Wis. May 24, 2011). In Revolinski, an employee’s application for continued employment as an assistant conductor was denied, due in part to his noncompliance with Amtrak uniform standards. Revolinski was unable to wear the uniform because of his weight, which was in the range of “morbid obesity” (defined as weight more than 100 pounds or double an individual’s optimum weight).

Because Revolinski’s claim under the Americans with Disabilities Act (ADA) was time-barred, the court considered only his disability discrimination claim under the Rehabilitation Act (the statute prohibiting federal employers from discriminating on the basis of disability). Courts frequently rely on ADA analyses when deciding claims under the Rehabilitation Act because of the statutes’ similar prima facie requirements. Using pre-ADAAA statutes and regulations (the ADAAA was not retroactive prior to its Jan. 1, 2009 effective date) the court determined that Revolinski’s obesity was not a disability under the Rehabilitation Act and awarded summary judgment for Amtrak. Due to the recent changes in disability discrimination law, though, it’s quite possible that a court would find differently if deciding whether the employer’s refusal to hire the employee in the above scenario was impermissible under the ADA. For example, a Mississippi federal court relied on the ADAAA to deny an employer’s motion to dismiss an obesity-based disability discrimination and hostile work environment claim by its former employee. Lowe v. American Eurocopter, LLC, 2010 WL 5232523 (N.D. Miss. Dec. 16, 2010). Read more