An Employee Who Can Work Full-Time but not Overtime is Not Disabled Under ADA

While the Americans with Disability Act (ADA) requires employers to reasonably accommodate a qualified individual with a disability, the ADA’s definition of disability excludes many common health conditions.  While the definition of disability was broadened by statute in 2008, the Fourth Circuit recently recognized that a disability did not exist under the old law where an employee could work 40 hours a week, but not overtime.  Thus an employer did not have to accommodate that employee by changing its overtime requirement, which barred him from working for many months.  The case is Boitnott v. Corning Inc., No. 10-1769 (4th Cir. Feb. 10, 2012).

In that case, the employee, Boitnott, a maintenance engineer at the defendant glass manufacturer, Corning Inc., was assigned to work rotating 12-hour shifts requiring that he spend two weeks on the day shift then switch to two weeks on the night shift.  After 13 years of employment, Boitnott had a heart attack resulting in abdominal complications.  After taking some time off, Boitnott returned to work, then experienced more heart trouble and was diagnosed with leukemia, all of which required that he take time off of work.  For almost a year, Boitnott’s doctor told him he could not work more than 8 hours a day, nor more than 40 hours per week, and also could not rotate night and day shifts.  Taking the position that Boitnott was not disabled because he could work a standard 40 hour workweek, Corning did not seek to accommodate Boitnott and refused to reinstate him because he could not comply with its rotating shift schedule.  (After Boitnott’s doctor cleared him to work some overtime, Corning devised a position that Boitnott could perform and reinstated him to that position.)

When he was out of work and restricted to working a normal 40-hour per week schedule, Boitnott filed a charge of disability discrimination against Corning and brought suit claiming that Corning violated the ADA.  The trial court granted summary judgment to the employer, and the Fourth Circuit affirmed based on the pre-2008 ADA definition of disability. The Fourth Circuit held that Boitnott was not “substantially” limited if he could handle a forty hour work week but was incapable of performing overtime due to an impairment. The court stated that the record contained no evidence indicating that Boitnott’s inability to work overtime significantly restricted his ability to perform a class of jobs or a broad range of jobs in various classes.

In so holding, the court cited decisions from a number of other Federal appeals courts (including the 1st, 3rd, 5th, 6th, and 8th Circuits) in finding that the pre-2008 ADA did not consider inability to perform overtime to substantially limit an individual in the major life activity of working.  Nevertheless, the court noted that after the 2008 amendments to the ADA, the regulations no longer require that an impairment substantially limit an employee in a “class of jobs or a broad range of jobs” to be a disability.  Thus it remains to be seen whether the post-2008 ADA requires an employer to reasonably accommodate an ailment that prevents the employee from working overtime.