Hunton Employment & Labor Perspectives

Employers increasingly feel that they are forced to bend, or sometimes even break, company rules to reasonably accommodate disabled workers under federal and state law. In a victory for employers, the Eleventh Circuit bucked this trend, holding that when mandatory overtime is established as an “essential function” of the job, a disabled employee who cannot work overtime is not a “qualified individual” under the Americans with Disabilities Act (“ADA”) and, thus, need not be accommodated.

Kimberly Agee worked for Mercedes-Benz as an hourly production worker at its Alabama assembly plant. Agee provided the company with a series of doctor’s notes, one of which contained an indefinite restriction on working overtime. After some back-and-forth, the Company rejected the accommodation request and provided Agee with two options: apply for unpaid Family and Medical Leave Act (“FMLA”) leave or be terminated. Mercedes-Benz ultimately fired Agee for failing to complete the FMLA paperwork.

Agee sued Mercedes-Benz for, among other things, disability discrimination under the ADA. The district court dismissed the disability discrimination claim on summary judgment and the Eleventh Circuit affirmed. The Eleventh Circuit held that Mercedes-Benz had established that the ability to work overtime was an “essential function” of Agee’s job. Because she could not perform that essential function, she was not a “qualified individual” under the ADA. The court reaffirmed a long-held principle that “an employer is not required to eliminate an essential function of a job to accommodate an employee.” The court also held that Mercedes-Benz had a legitimate, non-discriminatory reason for Agee’s termination, and there was no evidence of pretext.

Mercedes-Benz’s victory was no fluke. The company employed an across-the-board mandatory overtime for all of its employees, and thoroughly advised its workforce of this requirement. When Agee refused to participate in the interactive process, it adequately documented her refusal and afforded her several opportunities to provide the required documentation.

While the court’s ultimate holding—that overtime can be an “essential function” of the job—is unlikely to universally apply to all situations, there are a number of “best practices” to be learned from this case. If your company requires mandatory overtime for certain positions, or has other attendance requirements that you would consider to be an “essential function” of the job, you should consider the following proactive measures:

1. Add Appropriate Language to Employment Applications. If you have any attendance expectations that you would consider mandatory, advise prospective employees of those expectations in the job application. The court took note of the fact that Agee’s employment application advised her that “business needs” may require overtime.

2. Update Job Descriptions. If you have positions that require overtime, or other attendance requirements, make sure that the job description specifically states this. The court specifically referenced the fact that Agee’s job description required “flexibility in . . . work schedules.”

3. Update Employee Handbook and Other Policies. Make sure that your handbook and related policies are properly updated with any attendance requirements. The court noted that Mercedes-Benz’s handbook specifically stated that employees were “expected to work a reasonable amount of overtime as required for production schedules and as a condition of initial and continued employment.”