As most employers are aware, The Americans with Disabilities Act (the “ADA”) requires an employer to provide a reasonable accommodation to a qualified individual with a disability, unless doing so would cause undue hardship. One type of accommodation that an employee could request is a schedule adjustment; for example, an employee might request a part-time schedule or that the employee not have to work overtime shifts. Two recent decisions may provide guidance for employers faced with the task of evaluating and responding to these types of requests.
Two recent decisions may provide guidance for employers faced with the task of evaluating and responding to these types of requests.
In Incutto v. Newton, the District of Massachusetts was asked to consider the issue of whether a school district erred when it declined to accommodate an elementary school teacher’s request to convert her full-time teaching position into a part-time position. (2019 WL 1490132 (D. Mass. Apr. 4, 2019)). In denying the employer’s motion for summary judgment on this claim, the Court acknowledged that “common sense dictates” that the position of elementary school teacher could not reasonably be performed remotely or during off hours. The Court also acknowledged that the employee was hired for a full-time teaching position and that this fact was even discussed with the employee during her job interview. Nevertheless, the Court concluded that summary judgment was inappropriate on this claim because a jury could conclude that the employee’s job was “elementary school teacher” as opposed to “full-time teacher”.
In Massachusetts Commission Against Discrimination v. Tufts Medical Center, the issue was whether Tufts Medical Center failed to reasonably accommodate an inpatient nurse who claimed that she was unable to work overtime or any night shifts because of a chronic health condition. (Docket No. 10-BEM-01133) (Dec. 18, 2019)). Tufts Medical Center claimed that working overtime was an essential function of an inpatient nursing position because those nurses were called upon to provide coverage for call outs and patient emergencies, among other reasons. Indeed, the relevant collective bargaining agreement stated that Tufts Medical Center was permitted to require “reasonable overtime” from the nursing staff. Nevertheless, in a December 18, 2019 decision, the MCAD found that the Hearing Officer properly concluded that working overtime was not an essential function of that position.
From these cases, we can extrapolate that if an employer is challenged on its decision to decline a disabled employee’s request for an accommodation in the form of a schedule modification, a court will at least inquire into the following areas:
• What does the job description say? For example, Tufts Medical Center’s reliance on the collective bargaining agreement did not carry the day because the Hearing Officer noted that the job description merely stated that nurses could be expected to work “irregular hours”. The job description will likely be considered as important evidence of the essential functions of the job and therefore employers would be well-advised to carefully consider whether the job description accurately reflects the expectations of the position before a hire is made.
• Can the job be done in the requested number of hours, and if not, why not? In Incutto, even though that particular teaching position was designated as a full-time position, the Court noted that job-share positions were available and used by other elementary school teachers in the school district, which undercut the employer’s argument that the essential functions of the teacher’s position could only be performed on a full-time basis. Likewise, in the Tufts Medical Center decision, the Hearing Officer noted that 5% of inpatient nurses performed no overtime at all. Therefore, employers should be mindful that the court may consider other employees’ experiences in the same job when evaluating the essential functions of the position.
• What concrete evidence can the employer point to with respect to undue burden? The employer is going to bear the burden to show that the requested accommodation constitutes an undue hardship. Possible grounds could include administrative difficulties and budgetary considerations, for example. The Court in Incutto noted that the employer did not offer any concrete evidence as to why granting the reasonable accommodation would constitute an undue burden on the employer. Employers who conclude that the accommodation would be an undue burden would be well-served to marshal and document facts demonstrating why the requested accommodation would hinder the company’s business operations.
Employment cases are generally extremely fact-specific and, as these two cases demonstrate, this is certainly so when the employee requests a modified work schedule as a reasonable accommodation. An employer cannot summarily conclude that a modified work schedule is per se unreasonable. Instead, the employer must analyze on a case-by-case basis exactly what the employee was hired to do, how long it will take to fulfill these duties, and whether the time in which any or all of these functions are performed is integral to the company’s business operations.