A new case from the Fourth Circuit directly addresses a common enough dilemma: if an illness weakens an employee such that he can’t handle swing shifts or overtime, must an employee accommodate that problem?
No, says the Court. An employee who is able to return to a 40-hour week is not disabled in the major life activity of working, and therefore the employer does not have to accommodate him.
The case came up, ironically enough, with someone who was treated pretty well by his employer. After Michael Boitnott suffered a heart attack, he stopped working as a maintenance engineer. His job was structured around 12-hour shifts; the company required employees to rotate the shifts every two weeks so no one was always a night worker.
Eventually Boitnott was given permission to return to work. At first, his doctors disapproved of his working more than 40 hours, as well as the rotating shifts. Ultimately they approved “moderate overtime,” but not the alternating shifts. In response, Corning worked with his union and ultimately created a maintenance job requiring 40 hours per week with overtime, with no radical shift changes. He took the job, and remained there through the trial. He complained about his treatment for the time period before he could work more than 40 hours.
The court held that because he could work 40 hours, he could not show himself disabled from the major life activity of working. Plenty of jobs limited to a 40-hour week existed; therefore Boitnott was not disabled. The fact that he could not do his own job does not get him over the hurdle. If he’s not disabled, Corning has no obligation to accommodate him.
This case is a good reminder of the limitations of the ADA, even with the recent amendments. Until “staying up all night” is a major life activity, a person unable to handle a swing shift, but otherwise healthy, may never get to the reasonable accommodation stage. On the other hand, sometimes an employee has a recognized disability (for example, asthma). If a reasonable accommodation would be to alter a schedule, the employer must at least consider it.