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

Can your employer fire you if you can't work overtime due to a disability? The answer isn't as simple as yes or no. It depends on several factors, including what type of business your employer runs and whether your disability prevents you from performing your essential job functions.

The Americans with Disabilities Act (ADA) generally protects employees with disabilities from discrimination in the workplace. And the law requires covered employers to provide reasonable accommodations that allow workers with disabilities to continue to do their jobs. (42 U.S.C. § 12112(b)(5)(A).) But there are some exceptions.

First, let's look at who is entitled to reasonable accommodations, and then we'll look at whether employers must provide the option of not working overtime as a job accommodation. We'll also look at another law that might protect your job when your employer doesn't have to provide an accommodation under the ADA.

Do You Have a Disability Under the ADA?

What qualifies as a disability under the ADA depends on how much the condition affects your major life activities. Under the law, major life activities include, among other things, activities like:

• standing and walking
• performing manual tasks
• reading and learning
• communicating
• working, and
• concentrating.

As long as your doctor says that you're substantially limited in a major life activity, you likely have a disability covered by the ADA.

When Does Your Employer Have to Accommodate Your Disability?

Under the ADA, most employers are required to provide reasonable accommodations to employees with disabilities. But there are exceptions to this rule. Even if you have a disability as defined by the ADA, your employer doesn't have to provide an accommodation when:

• the company is too small to be covered by the ADA (fewer than 15 employees)
• providing the accommodation would create an "undue hardship" for the business, or
• there isn't an accommodation available that would allow you to continue to perform your "essential job functions."

Employers aren't required to provide accommodations that create an undue hardship for the business. The ADA defines undue hardship as placing an unreasonable burden on the company, given the cost of the accommodation and the size, resources, and structure of the business (42 U.S.C. § 12111(10)).

If the ADA covers your employer, and the accommodation wouldn't be too big a burden on the business, then it comes down to whether the accommodation would allow you to continue to perform your essential job functions. And that's where the question of overtime gets sticky. Is overtime ever "essential" to performing a job?

Consider the example below:

When Is Overtime an Essential Job Function?

If you have a disability, your employer generally has a duty under the ADA to provide a reasonable accommodation—but only if you can still perform the essential functions of your job. The courts have found that in some situations, working overtime can be an essential job function, depending on the needs and structure of the business.

A federal appeals court found that working overtime was an essential job function for an employee who reconnected electrical service for customers of a utility company (Davis v. Florida Power Light Co. 205 F.3d 1301 (11th Cir. 2000)).

More recent court rulings have also found that overtime can be an essential job function, including at least one case involving a delivery driver (Faidley v. United Parcel Service of America, 889 F.3d 933 (8th Cir. 2018)).

Applying these rulings to the above example, if Carl's employer regularly requires employees in his position to work a substantial amount of overtime each day, it's more likely that a court would consider it to be an essential job function. But a court will also consider several other factors, such as:

• whether the employer has any policies guaranteeing delivery of packages within a certain time frame
• whether Carl's work could be redistributed to other employees, and
• whether the company has allowed any workers in his position to work less than 14 hours per day.

What if it turns out that working overtime isn't an essential job function for a particular company? Then the employer must provide a reasonable accommodation for an employee who can't work overtime due to a disability.

In our example, if working overtime isn't an essential job function, then as long as Carl's doctor says it's safe for him to work 9.5 hours, it's illegal for his employer to refuse to allow him to work 9.5 hours a day until his restriction is removed.

If Carl's employer can't accommodate his reduced schedule, the company might need to consider a job transfer as a reasonable accommodation. If there's another available position for which Carl's qualified, he might be entitled to that new job.

Are You Entitled to a Reduced Schedule Under the FMLA?

What if you're not able to work fewer hours as an accommodation under the ADA? Another federal law that might give you the right to take unpaid leave or switch to a reduced schedule is the Family and Medical Leave Act (FMLA). The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid time off for a serious health condition.

(Learn more about your rights to take FMLA leave, including eligibility requirements.)

Intermittent Time Off Under the FMLA

The FMLA allows you to take time off intermittently if needed. In other words, you can take unpaid leave in increments of a few hours a day, until your 12 weeks of leave are used up.

So, if you need a temporarily reduced schedule—like Carl might need to have time to adjust to his sleep medications—the FMLA can provide you with several months of a reduced schedule. But when your leave is up, you'll need to be ready to return to your regular schedule.

Returning to Work After FMLA Leave

Once you're ready to begin working your normal schedule again (or return to work after taking full-time FMLA leave), your employer can require a doctor's note removing your work restrictions and okaying your return. Your employer can also require you to undergo a medical examination (called a "fitness-for-duty" exam) to show that you can safely work your normal schedule.

(Learn more about returning to work after FMLA leave.)

Get Help Enforcing Your ADA and FMLA Rights

Because the ADA and FMLA requirements can be complicated, you should consider speaking with an employment lawyer immediately. A lawyer can help with things like:

• explaining your rights under these laws
• negotiating with your employer, and
• representing 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. Learn more about hiring an employment discrimination lawyer.