The Massachusetts Appeals Court recently confirmed a finding by the Massachusetts Commission Against Discrimination (MCAD) that a hospital employer failed to accommodate a nurse whose disability prevented her from working overtime.  The nurse, who suffered from rheumatoid arthritis, was constructively discharged (i.e., forced to quit) from her position after the hospital refused to accommodate her request that she not be required to work night shifts and overtime.

The nurse was hired by the hospital in 2002 as a registered nurse caring for inpatients and transferred to a medical surgery unit in 2007.  She received “Excel on her 2008 performance review, the latest one on the record in the case.  In 2006 she was diagnosed with rheumatoid arthritis, which also caused her to develop interstitial lung disease.  In 2007, the nurse was granted a temporary accommodation from working overtime due to her medical condition.

From October 2008 to May 2009, the employee took intermittent leave under the federal Family and Medical Leave Act (FMLA), and in late May she underwent emergency surgery that led to a continuous FMLA leave.  In July 2009, the hospital notified her that she had exhausted her FMLA leave. She was told that her position would be filled and that she would have to apply for open positions when she was ready to return.

Although in the fall of 2009, several day positions opened up at the hospital, the nurse was not notified of these openings, even though the employee worked closely with a nurse recruiter assigned to her by the hospital.  In November 2009, she raised the need for accommodation when she was offered a vacant night-shift position.  She provided a note from her doctor indicating that she could only work a normal daytime shift and could not work nights or overtime.

In December 2009, the nurse initiated a grievance with her union concerning her reemployment rights, which was unsuccessful.  The hospital then concluded that her return to work in an inpatient capacity was unlikely and that she could be “processed for separation” on Jun 5, 2010.

The employee then filed a claim with the MCAD, where a hearing officer found that the hospital failed to participate in an effective interactive process, in violation of the Massachusetts anti-discrimination statute (M.G.L. ch. 151B, §4(16)).  The hospital appealed to the full MCAD commission on the basis that the hearing officer had not concluded that overtime work was an essential function of the job.  The collective bargaining agreement (CBA) between the nurses and the hospital provided the hospital with “the right to require reasonable overtime work,” and the job description for her position indicated that the employee is “subjected to irregular hours,” but overtime was not listed as an essential function of the job on the nurse’s job description.

The full commission affirmed the hearing officer’s decision in its entirety.  When the hospital appealed to the Superior Court in 2020, ten years after the employee’s termination, a judge affirmed the MCAD decision.  As a side note, during the appeal to the full MCAD commission, the employee passed away and the case was then pursued by the personal representative (executor) of her estate.

The hospital appealed to the Massachusetts Court of Appeals (the Appeals Court) on the question of whether the MCAD had erred in not determining whether overtime was an essential function of the job.  In reviewing this question, the Appeals Court considered the following factors:

1. The employer’s judgment as to which duties are essential,
2. Written job descriptions,
3. The amount of time on the job spent performing the function,
4. The consequences of not requiring the employee to perform the function,
5. The terms of collective bargaining agreement,
6. The work experiences of past incumbents in the job, and
7. The current work experience of incumbents in the job.

The Appeals Court affirmed the Superior Court’s decision, giving significant weight to the fact that the CBA did not specifically require overtime, that not all nurses at the hospital actually performed overtime work, and that the hospital had earlier granted such an accommodation to this employee.  One Appeals Court judge dissented from the majority opinion, arguing that the employer’s judgment (#1 above) should be given substantial weight, and cited as examples of the hospital’s urgent need to care for patients in emergencies such as the Boston Marathon bombings and the pandemic.

Here are a few lessons for employers from this case:

• If you wish to mandate overtime, include the requirement in job descriptions.
• It is crucial to engage in the interactive process when you receive a request for accommodation for a disability.
• This case illustrates litigation can continue for years prior to reaching a resolution.

AIM members with questions about disability accommodations, mandatory overtime, or any other human resources issue may contact the AIM HR Helpline at 800-470-6277.