October 2018 Newsletter

Can Employers Require Employees in Full-Time Jobs to Work Full-Time Hours? Maybe Not.

It seems like the answer to this question should be an obvious yes. If an employer hires someone to work a full-time job, the employer should be able to require that the employee work full-time hours, right?

Unfortunately, it isn’t that simple. If an employee’s disability is the reason the employee is not able to work full-time hours, the Americans with Disabilities Act is implicated, and a recent court decision interpreting the ADA has held: “full-time presence at work is not an essential function of a job simply because an employer says it is.”

Hostettler v. College of Wooster: Full-Time Job Does Not Necessarily Require Full-Time Hours

The ADA is a difficult Act to follow, and this recent court decision will make it even harder. In the case of Hostettler v. College of Wooster, the Sixth Circuit Court of Appeals considered the situation of Heidi Hostettler, an HR Generalist in the College of Wooster’s Human Resources Department. Pursuant to the College’s Family and Medical Leave Act policy, Hostettler had been out of work for twelve weeks following the birth of her child. At the end of her leave, she provided the College with documentation that she had been diagnosed with postpartum depression and separation anxiety. When she returned to work her care-provider indicated that she would need to work part-time for the “foreseeable future,” which could be somewhere between two and six months.

In the situation addressed by the court, there was a written job description stating that the position was full time. In addition, Hostettler had worked 40 hours per week prior to her leave of absence, and she stated after she returned that she wished she was able to work full-time. Nevertheless, the court held that something more was required in order to issue judgment without letting Hostettler put her case before a jury. The court pointed out that Hostettler had been allowed to return to work part-time initially, and it was only after she submitted updated documentation that remained equivocal (it stated that she “might” be able to return to full-time work after another month and a half) that she was terminated for being unable to meet the full-time requirement of the job. Hostettler presented evidence that she had satisfactorily performed her job while working part-time. The court concluded that under these facts, the employer could not “deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve the employer of its ADA requirements.”

What does this mean for employers?

While the binding effect of the Hostettler case is limited to the Sixth Circuit, ALL EMPLOYERS need to take heed in response to the case. This is because the logic of the decision is sound, and other courts outside the Sixth Circuit may follow it. The reasoning is also consistent with the Equal Employment Opportunity Commission’s guidance requiring an interactive, individualized accommodation process.

Here are three key takeaways for employers in light of the Hostettler case:

1. Update job descriptions: Make sure that descriptions for full-time positions show a real need for a full-time schedule beyond simply stating that it is a requirement of the job. Generally, much deference is given to an employer’s description of the job, but the Hostettler court’s simple requirement that there be a “why” behind the requirement is logical. Employers should make sure their job descriptions reflect clear and sound reasons for full-time schedules.
2. Be Careful about Granting an Accommodation You Don’t Mean to Continue: A key fact in the Hostettler case was that the employee did return to work part-time and was only later told that part-time was not okay because the job required a full-time schedule. Once an accommodation has been granted, it is hard to take it away, and many employees returning from leaves of absence come back part-time at first. This needs to be done with caution, consideration and careful documentation. Even when an employee is performing poorly on a modified schedule, it is hard to take it away. One EEOC publication puts it like this: “Simply withdrawing the telework arrangement or a modified schedule is no different than [responding to poor performance by] discontinuing an employee’s use of a sign language interpreter or assistive technology as reasonable accommodations.”
3. Say What You Really Mean When Giving Feedback: Hostettler provided evidence that after she returned to work part-time, she received only positive feedback about her performance. She believed she was completing the core functions of her job satisfactorily, and she received a performance review after she returned that was overall positive. The review didn’t address issues relating to her schedule or the need to put in full-time hours for the job. The employee was not given the message that any functions of her job were suffering because of her part-time schedule. Direct feedback that is consistent with the employer’s established job description is necessary to showing that the things in the job description really are essential.