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The Inability To Work Overtime Is Not ADA Disability

In today’s economy, employers are asking more from fewer employees. Usually, this reality manifests itself in required overtime. Lately, however, employees are resisting or refusing to work overtime invoking protections under the Family Medical Leave Act and, most recently, the Americans With Disabilities Act (“ADA”). What do you do if an employee who is able to work a 40-hour workweek, claims he or she cannot work overtime due to a disability?

That was the issue confronting the U.S. Court of Appeals for the 4th Circuit (overseeing Virginia and other states) in Boitnott vs. Corning Incorporated, decided February 10, 2012. Boitnott was a mechanical engineer who had consistently worked overtime shifts for over a decade. He took a substantial medical leave related to Leukemia treatment. Returning from leave, his physician limited him to working no more than eight hours a day and 40 hours a week. Corning declined to reinstate Boitnott, claiming that he was not disabled under the ADA since he could work a full 40 hour workweek. Boitnott filed a charge of disability discrimination with the EEOC, which found “reasonable cause” to believe Corning had violated the ADA. Boitnott filed suit under the ADA claiming Corning’s refusal to allow him to return to only a 40 hour workweek was a refusal to accommodate his disability. The trial court disagreed and dismissed his claims. The Court of Appeals also disagreed and affirmed dismissal of his claims. The Court held that an employee is not substantially limited in a major life activity under the ADA if he or she can work a 40 hour workweek but is simply incapable of working overtime due to an impairment.

Claims of inability to work overtime or to work more than eight hours/day are increasingly common as a device to avoid working overtime. Claims of stress, fatigue, fibromyalgia, etc. are typically used. Every Federal Court of Appeals to have considered this issue has decided that an employee who is capable of working a 40 hour workweek but cannot work overtime is not disabled under the ADA and is not entitled to reasonable accommodation to avoid overtime.

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About this Author


Kelly H. Kolb has defended employment claims for over 20 years before State and federal courts, administrative bodies and arbitration panels. He has successfully defended State and Federal discrimination, sexual harassment, retaliation, USERRA, FLSA overtime, wrongful termination, wage, and unemployment claims. He has fought FLSA overtime compliance audits by the U.S. Department of Labor, Wage and Hour Division, and has successfully litigated FLSA collective action overtime suits. He has successfully litigated ERISA and COBRA claims, defending both employers and plan administrators. He has...