Ability to Work Rotating Shifts held an Essential Function of Burger King Assistant Managers

            

 The Americans with Disabilities Act continues to generate many lawsuits. A recent decision held that the ability of management personnel to work rotating shifts was an essential function of a job.

A Puerto Rican Burger King franchisee owns several restaurants, some of which are open 24/7 (at all times).   The assistant managers rotate the time and location of their shifts so that the desirable work periods as well as the undesirable ones are evenly distributed among them. The franchisee delineates three work shifts in the course of a day – 1) 6:00 a.m. to 4:00 p.m.; 2) 10:00 a.m. to 8:00 p.m.; and 3) 8:00 p.m. to 6:00 a.m.

The plaintiff assistant manager was making a bank deposit in 2011 when he was robbed at gunpoint and hit on the head. Since that attack he has suffered from post-traumatic stress disorder and major depression.

To better manage his medical conditions, plaintiff requested a fixed work schedule rather than a rotating one, and a permanent assignment to a location away from a high-crime area. The franchisee agreed to this request on a temporary basis but after awhile insisted plaintiff again work rotating shifts. Plaintiff resigned In 2013, and sued claiming defendant’s failure to allow him a fixed schedule violated the duty to reasonably accommodate his medical conditions.

A plaintiff suing for failing to accommodate under the ADA must prove the following three elements: 1) he is disabled within the meaning of the ADA; 2) he is nonetheless qualified to perform the essential functions of the job, with or without reasonable accommodation; and 3) the employer knew of the disability but refused to make an accommodation when requested to do so by the employee.

An essential function of a job is one that is fundamental to the job, as opposed to marginal. Whether or not a task is an essential function is determined on a case-by-case basis. The contents of a written job description by an employer is one form of evidence of essential functions. A few other factors a court considers when determining whether a task is an essential function are the consequences to the employer of not requiring the incumbent to perform the task, the work experience of past incumbents in the job, and the current work experience of employees in similar jobs.

Here, accommodating plaintiff permanently would have disproportionately burdened the other assistant managers who would have to work an increased number of undesirable shifts. Further, the job application for the position, which plaintiff signed when hired, informed assistant managers they they had to be able to work a variety of shifts at different sites.

The court concluded that working rotating shifts was an essential function of the job of assistant manager in defendant’s Burger King franchises.

The ADA protects qualified individuals, which is defined as a person “who, with or without reasonable accommodation, can perform the essential functions of the job.” Since no accommodation would enable plaintiff to work rotating shifts, and since rotating shifts are an essential function of the job, plaintiff was not a qualified individual per the ADA. Therefore, the store did not violate the Act by declining to adjust plaintiff’s work schedule as he requested. Summary judgment for the employer; case dismissed.

For more information see Sepulveda-Vargas v. Caribbean Restaurants, LLC, __F.3d__, 2018 WL 2000012 (1st Cir., 4/30/2018)

 DISCUSSION QUESTION:

Do you concur that the ability to work rotating shifts was an essential function of defendant’s job? Why or why not?