Every one of us in the HR/employment world has met this moment. Your employee, Tommy, hands you a doctor’s note – usually no more than one sentence long – stating simply:

Tommy’s pinky toe hurts. Based on my medical judgment, Tommy cannot work more than 8 hours in a day or 40 hours per week. No overtime advised.

It’s a doctor’s note that causes HR directors everywhere to wince.

So, what’s the impact of this doctor’s note? Can an employee use a “NO OVERTIME” doctor’s note to take FMLA leave whenever he’s assigned overtime? Or can we rely on the ADA, which tells us that we do not need to dispatch an essential function of the job?

According to a newly-issued Department of Labor opinion letter, the employee’s “no overtime” diagnosis is FMLA-protected, and the employee with a chronic serious health condition can use FMLA leave to reduce work hours indefinitely.

Here are the Facts

As the story goes, some poor chap running a local business couldn’t find employees to work the 24-hour coverage needs of his business. Employees at the company were regularly scheduled to work more than eight hours per day but they requested FMLA leave for any time exceeding eight hours per day. Naturally, the employer asked the DOL whether employees could use FMLA leave to limit their work schedule indefinitely due to a chronic serious health condition. Notably, the employer suggested [as would I!] that the ADA might be more appropriate than FMLA leave to address the employees’ inability to work their regularly scheduled shift on an indefinite basis.

DOL: Inability to Work Overtime = FMLA

In its first FMLA-related missive since the year 2000 [where have you been DOL!?!], the DOL states put it rather simply: if an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.

Here’s the DOL’s specific admonition:

An employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave. [If] an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement. The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.


Insights for Employers

Before you get all hopeless on me, employers still have some options.

Option 1: Follow the Opinion Letter

Ok, this option is obvious, right? After all, in light of this new opinion letter, it seems apparent that the safest approach is to designate any overtime as FMLA-protected.

And there is good reason to do so. As you may remember from one of my prior posts, a federal court in Connecticut adopted the DOL’s opinion letter about nine years before the DOL even drafted it. In that case, Sam had cluster headaches, and his physician advised against any overtime, as the additional work time would exacerbate his condition. Despite the employer’s thoughtful objections, the court determined that the employee had the right to use FMLA to cover any excess hours scheduled above eight in a day. In its decision, the court acknowledged that the ruling could pave the way for the conversion of full-time positions into part-time jobs. Santiago v. Connecticut Department of Transportation, et al.

I wouldn’t blame you if you simply decided to take cover under the opinion letter and the Santiago case, and designate overtime as FMLA leave going forward. It reduces your risk.

Option 2: Let the ADA Be your Hero

But some of you are willing to take on some more risk.

Notably, the DOL’s opinion letter specifically cites to the Santiago case above in drawing support for the application of FMLA to these overtime absences. However, the DOL also ignored a number of courts that have supported the employer’s decision to terminate an employee in situations where employees have an hour restriction on their work and where restrictions effectively reduce their positions to part-time roles, ultimately finding that these termination decisions do not violate the law.

Here are a few for your reading pleasure:

  • It seems to me that the strongest argument undermining the value of the DOL opinion letter is that the FMLA doesn’t apply when an employee needs a permanent change in their schedule. Take, for instance, Porter v. Tri-Health, Inc.  (S.D. Ohio 2018). In Porter, the plaintiff, a sonographer, wanted to excise “on call” hours from her weekly schedule.  However, the court ruled that the employee’s “FMLA leave, although labelled intermittent leave, would actually have been a permanent schedule change, which is not required under the FMLA.” Similarly, see Wiseman v. Vanderbilt Univ. (M.D. Tenn. 2005) (recognizing that, although the FMLA permits a reduced schedule or intermittent leave, it does not provide for a permanent schedule change). [Hat tip: Matt Morris]
  • In Manigan v. Southwest Ohio Regional Transit Authority (6th Cir. 2010), the Sixth Circuit ruled that a bus driver should be able to drive more than eight hours per shift as required by the job description and the work experience of those in the position.  In this case, the employee provided a doctor’s note limiting his work to eight (8) hours in a day.  At first, the company accommodated these restrictions, but later removed the employee from work when he could not work his entire shift.  This personnel move was upheld by the Court, which found that the job clearly required the employee to work longer than eight hours in a day, that the employer could not effectively cover the remainder of the employee’s shift, and that disruptions to the riding public would likely occur.  As a result, the Court found that the employee failed to show that he was qualified to perform the essential functions of his position with or without accommodations.  Similarly, in Green v. Bakemark (6th Cir. 2017), the court held that full-time attendance was an essential function of the job and anything less would fundamentally alter the position, which is not required by the ADA.
  • In EEOC v. AT&T Mobility Services, LLC (E.D. Mich. 2011), a federal court in Michigan determined that an AT&T Store Manager with multiple sclerosis could not perform the essential functions of her job because she could not work “evenings, weekends, holidays and overtime,” which the court found were essential functions of the position. In short, without spending that time at work, the store manager could not properly perform her job, or run the store for which she was responsible.  In rejecting the employee’s ADA claims, the court also found that AT&T participated in a good faith, interactive dialogue with the employee to attempt to accommodate her disability.  When the employee’s physician refused to remove a 40-hour per work restriction, the court found that the employer rightfully terminated the individual’s employment.
  • In Agee v. Mercedes-Benz (11th Cir. 2016), the Eleventh Circuit dismissed an employee’s ADA claims where her indefinite work restriction of a maximum of 40 hours per week prevented her from maintaining a flexible work schedule and working mandatory overtime, which were essential functions of her position.  Here, the plaintiff had a disability (breast cancer) and, as a result, lifting restrictions. Later, these restrictions remained in place during her pregnancy.  The employee’s physician limited her to no more than 40 hours worked per week “due to her medical limitations.”  The court found this restriction to be “seemingly indefinite.”  Once it learned of the restriction, the employer notified the employee that it could not accommodate a permanent 40-hour workweek restriction. Additionally, the employer informed the employee that she was being placed on unpaid family medical leave, and she needed to go back to her doctors to get her restrictions lifted or she would be terminated. The plaintiff declined to take family medical leave, and the employer later fired her for unexcused absences.

Ok, that was way too much case law. My apologies. Take what looks good and skim through the rest.

But one thing is clear: When it comes to overtime and the FMLA, let the employer beware.