Monday, August 25, 2008, 4:29 PM

Essential Functions Include Overtime

This one isn't an FLSA decision, but it's strangely related: Glena Tjernagel was a part-time production employee in Gates Rubber's plant in Boone, Iowa for more than nine years before acquiring full-time status in 2004. The facility manufactures hydraulic and industrial hoses, and Tjernagel's job entailed a degree of physical exertion; the regular shift consists of 8 hours, with overtime, including on weekends, to meet production demands. In 2005, plant employees worked 22 Saturdays; there were no light duty assignments. In May of that year, Tjernagel was diagnosed with multiple sclerosis; over the next few months, she left the production line to take extra breaks, sometimes returning before shift change and sometimes not. On November 2, 2005, after a company-requested work capacity evaluation, her physician imposed several work restrictions, concluding with "No overtime." Several modifications to her work station were made, but the HR manager reminded Tjernagel that "the plant worked overtime and Tjernagel could not be treated differently than other production workers." Two months later, although Tjernagel had worked no overtime in the interim and had not been asked to do so, her employment was terminated "because she could not work overtime and because of her other work restrictions." Tjernagel was advised of her right to seek peer review under company policy.

Her physician provided a new work capacity review which dropped the overtime restriction but was otherwise the same as the previous one. A dialogue between the doctor and the company physician was thwarted when Tjernagel's attorney took the position that such a discussion would be "problematic" without the attorney's presence. Given this failure to communicate, Gates declared the process at an end and triggered the 21-day peer review period. Tjernagel's doctor then faxed a "no restrictions" work release, but Tjernagel inexplicably omitted it from the materials she submitted in support of her appeal, including only the two work capacity evaluations. The five-member review panel - three hourly production employees and two management members from another plant - unanimously upheld the termination.

Tjernagel sued under the Americans with Disabilities Act, the Iowa Civil Rights Act, and the Family and Medical Leave Act, claiming discrimination and retaliation; a federal district court granted the company's motion for summary judgment on all counts, and Tjernagel appealed only as to disability discrimination under federal and state law, abandoning her FMLA and retaliation allegations. Affirming the district court opinion, the Eighth Circuit found Tjernagel was neither substantially limited in a major life activity nor regarded as disabled. But as an alternative rationale, the court said Tjernagel was unable to perform the essential functions of her job because she couldn't work overtime and had a substantial number of other restrictions which were determined by her alone, based on how she felt. The court focused on overtime: "An employer's mandatory overtime requirement has been recognized as an essential job function," is "akin to job presence," and "attendance at work is a necessary job function." So even assuming she had a disability, no reasonable accommodation could be made because all the production jobs required overtime. Tjernagel v. The Gates Corporation, 8th Cir. No. 07-3101 (July 9, 2008).

There are several morals to this story: Not all essential job duties are "major life activities." Make sure your internal appeals have all the right information included. Resist the temptation to complicate the process by demanding attorney intervention at every stage. Beware of the overreaching medical restriction which renders an employee unqualified to stay at work - especially if those restrictions can evaporate when the choice is keeping or losing a job. And remember there's nothing wrong with "forcing" employees to work overtime - unless, of course, you run into a court that disagrees with that premise.

Click here to read the case...

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