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Could transfer to job requiring no overtime be reasonable accommodation?

By Lorene D. Park, J.D.

An employee who could not safely work in a seated position without moving around every 50 minutes, and who could work no more than eight hours a day, was substantially limited in the major life activities of sitting and working as compared to the general population, concluded a federal district court in Texas. Moreover, while agreeing with her employer that working overtime was an essential function of her position in its call center, the court found questions of fact on whether the employee could have been accommodated by being transferred to another position for which she was qualified that did not require overtime. Summary judgment was therefore denied with respect to her failure to accommodate claim (Gonzalez v. Texas Health and Human Services Commission, November 19, 2014, Ezra, D.).

The employee, who was hired as a “Texas Works Advisor” in January 2011, fell ill the next June and was diagnosed with a pulmonary embolism and deep vein thrombosis. She took a five-week leave of absence and returned to work with certain restrictions, including that she ambulate every hour for ten minutes and avoid working more than eight hours per day. She discussed the restrictions with the employer’s civil rights specialist, who began the interactive process to find an accommodation. Although the employee was temporarily relieved of overtime, the employer stated that going forward it would accommodate her request to work only eight hours per day but she would need to work overtime on Saturdays.

Requests for transfer. Upon learning she would have to work over 40 hours a week to keep her position, the employee sought the accommodation of a transfer to a position where overtime was not required. The civil rights specialist consulted an HR rep to search for vacant positions in the surrounding area for which the employee was qualified, but the HR rep said there were none that guaranteed a 40-hour week or didn’t require overtime as an essential function. According to the employee, however, the search was not sufficiently thorough because the HR rep did not search sister departments or make repeated searches for positions that opened up. The employee requested transfers to a number of positions but nothing came of those. She was eventually terminated on October 17, 2011, because she could not perform the essential function of overtime.

Substantially limited compared to general population. After a thorough review of the history of the ADA, the Rehab Act, changes made by the ADAAA, and the EEOC’s 2014 interpretive guidance, the court addressed whether the employer was entitled to summary judgment on the employee’s failure to accommodate claim. The employer did not dispute that sitting and working are “major life activities” but argued that the employee was not substantially limited in them. Disagreeing, the court explained that, in comparing her ability to perform a major life activity to that of the general population, courts consider, among other things, the “pain experienced when performing a major life activity.”

Here, the court concluded that the employee was substantially limited in sitting because she could not safely sit for more than 50 minutes without getting up and ambulating. As compared to the general population, that was a substantial limitation. Furthermore, in light of the ADAAA, it found her substantially limited in the activity of working because she was restricted from working overtime and was substantially limited in her ability to sit. Consequently, the employee demonstrated that she has a “disability.”

Overtime was essential. The next question was whether the employee could perform the essential functions of her job. The court agreed with the employer that working overtime was an essential function. Here, the employee’s job description mentioned the possibility of working overtime, though it was not listed in the section on essential functions. In addition, the employer argued that overtime was an essential function because it “was the tool that got the work done,” was “integral” to the position, and was “akin to job presence.” There was also evidence that overtime work was necessary through the entirety of the employee’s tenure to ensure paperwork was completed in accord with mandatory guidelines and that the volume of the call center where she worked required overtime. Moreover, call center employees were advised during the application process that overtime would be required. For these reasons, the court concluded that overtime was an essential job function.

Transfer as accommodation. However, that did not end the inquiry as to whether the employee was a qualified individual because the court had to consider whether she could perform her essential functions with a reasonable accommodation. In the court’s view, the employee raised a question of fact as to whether she could have been transferred to a position that did not require overtime as a reasonable accommodation. Although the employee presented no competent evidence that there were advisor positions (like hers) available in field offices that did not require overtime, there was evidence that she could have been transferred to a medical eligibility specialist position, which did not require overtime. Because there was a question on whether there was an available job for which the employee was qualified to transfer, summary judgment was not appropriate on her failure to accommodate claim.