Should an employee who has been advised by their doctor not to work overtime be accommodated? The answer is likely yes, based on the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
A February opinion letter from the U.S. Department of Labor sheds light on the subject. It states that an employee with a serious health condition that requires limited work hours can use FMLA to work fewer hours per day for an indefinite period, as long as they don’t exhaust their FMLA leave entitlement. Leave guaranteed under state or local laws may also apply.
Even if the construction worker is part of a small crew that has seen most of its workers take FMLA leave, they would still be entitled to FMLA leave. The FMLA is not a first-come-first-served system; if an employee qualifies for leave, they get it without additional analysis. However, employers may ask for clear and sufficient documentation and contact the employee’s healthcare provider for clarification and authentication.
Regarding the ADA, its requirements and protections are separate from the FMLA. An employer cannot use the ADA to bypass FMLA leave; if an employee requests FMLA leave, the employer must allow it. But what if the construction worker has already used up their 12 weeks of FMLA leave due to cluster headaches preventing them from working overtime?
In this case, if the employee’s condition qualifies as a disability under the ADA, the employer must assess whether overtime is an essential function of the job. Some questions to consider include how important overtime is to the employee’s regular schedule, how frequently overtime is worked, and how it impacts the business. If overtime is indeed essential, the ADA doesn’t require the employer to eliminate this requirement from the job. In some cases, it may be better to suspend the position and have someone else work in it.
However, the employer’s obligations under the ADA don’t end there. Reassignment may be a reasonable accommodation for an employee who can no longer perform essential job functions. The employer isn’t obligated to create a new position for reassignment but should think creatively about reasonable accommodations.