Can My Employer Fire Me If I Can’t Work Overtime Due to a Disability?


I’m a driver and have been regularly working 14-hour days for a large package delivery service company. I was recently diagnosed with ADHD and depression, and I have a lot of trouble sleeping at night. My doctor prescribed sleep medication, but it makes me groggy and it’s hard to get up in the morning. It's also hard for me to concentrate after a while, so my doctor recommended that I work no more than 9.5 hours a day. I asked my boss for a reduced schedule as a reasonable accommodation, but he refused. He immediately took me off work, saying that he was concerned that it wasn’t safe for me to work at all. He told me I couldn’t come back to work until my work restrictions were removed. Is this legal?


Whether your employer must accommodate your work restriction depends on whether you have a disability and whether overtime is an essential function of your job. However, even if you’re not entitled to an accommodation, you may be entitled to take unpaid leave under federal law. (But if it turns out you aren't entitled to an accommodation and you don't take FMLA leave, yes, your employer is allowed to require that your doctor remove the work restrictions indicating you might not be safe working more than 9.5 hours—or that you attend a fitness-for-duty exam.)

Do You Have a Disability?

ADHD and depression can both qualify as disabilities under the federal Americans with Disabilities Act, depending on how much the conditions impact your life. As long as your doctor finds that you are substantially limited in a major life activity—for example, sleeping, working, or concentrating—you likely have a disability under the ADA. (For more information, see Your Right to a Reasonable Accommodation Under the ADA.)

Is Overtime an Essential Job Function?

If you have a disability, your employer generally has a duty to provide a reasonable accommodation that would allow you to do your job. However, you must still be able to perform the essential functions of your job. Your employer might argue that working a 14-hour day is an essential job function of all delivery drivers.

Courts have found that working overtime can be an essential job function, depending on the needs and structure of the business. For example, one court found that working overtime was an essential job function for an employee who reconnected electrical service for customers of a utility company. The court based its decision, in part, on the fact that the company had a 24-hour policy for reconnecting service for customers. This policy created fluctuating needs on a day-to-day basis, and the only way to fulfill the promise was to have employees work overtime. The court also emphasized that the company regularly required overtime of all employees in the same position and that this was made known to the employees at the time of hire.

It sounds like your employer regularly requires employees in your position to work a substantial amount of overtime each day, which makes it more likely that a court would consider it to be an essential job function. However, a court will also consider several other factors, including whether your employer has any policies guaranteeing delivery of packages within a certain time frame, whether your work could be redistributed to other employees, and whether the company has allowed any workers in your position to work less than 14 hours per day.

If working overtime isn’t an essential job function of your position, and it wouldn’t create an undue hardship for your employer to reduce your schedule to 9.5 hours, it must accommodate you. In this case, as long as your doctor says that it is safe for you to work 9.5 hours, it is illegal for your employer to refuse to let you come to work until your work restriction is removed.

If your employer can’t accommodate your reduced schedule, it may need to consider a job transfer as a reasonable accommodation. If there’s another available position for which you are qualified, you may be entitled to that new job.

Are You Entitled to a Reduced Scheduled Under the FMLA?

Even if you’re not entitled to a reasonable accommodation under the ADA, you may be entitled to a reduced schedule under the Family and Medical Leave Act (FMLA). The FMLA requires employers to provide eligible employees with up to 12 weeks of unpaid time off for a serious health condition. (For more on the FMLA, including eligibility requirements, see Taking Family and Medical Leave.)

The FMLA allows you to take this time off intermittently, if needed. In other words, you can take unpaid leave in increments of a few hours a day until the 12 weeks of leave are used up. So, if you need a temporarily reduced schedule only while you adjust to your sleep medications, the FMLA can provide you with several months of a reduced schedule. However, when your leave is up, you’ll need to be ready to return to your 14-hour day schedule. At that point, your employer may require a doctor’s note or require you to undergo a medical examination (called a “fitness-for-duty” exam) to show that you’re capable of safely working a 14-hour day at that point.

Getting Help

Because the requirements of the ADA and FMLA can be complicated, you should consult with an employment lawyer right away. A lawyer can explain your rights under the law, negotiate with your employer, and represent you in an administrative claim or lawsuit, if necessary. A lawyer can also advise you as to whether any state or local laws provide you with additional rights.

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