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Healthcare Employment: On-Call Coverage Can Be Essential Function
Request to Be Excused May Not Be Reasonable Accommodation
Participation in overnight on-call coverage can be an essential function of an employee’s job and, if so, a request to be excused from that responsibility is not a reasonable accommodation. That was one conclusion reached by an Ohio federal court in Porter v. Tri-Health, Inc. Kimberly Porter was a sonographer in Tri-Health’s radiology department since 2009, and in 2013 she was diagnosed with lupus. She took consecutive FMLA leave and, when she returned, requested intermittent FMLA leave for symptom flareups. In 2014, her doctor decided she could not take on-call shifts after 9pm or before 6am. Porter volunteered to take nearly all on-call coverage outside these times, but Tri-Health still found it difficult to cover the overnight shifts. In 2015, Porter’s doctor deemed the restrictions permanent. Tri-Health determined that it could not grant the accommodation permanently, even though it had been allowing her schedule restrictions for about a year. Tri-Health offered some assistance to Porter in finding another job within the company, but she was unsuccessful. She filed her EEOC charge soon after, followed by the lawsuit. 

Fortunately, Tri-Health could show that overnight coverage was an essential job function because (a) unpredictable medical emergencies necessitated that sonographers sometimes be physically present at all hours, (b) the number of on-call hours was not insignificant given the small number of sonographers in the department, (c) Porter knew about the requirement when she started, and (d) Tri-Health had modified its generic sonographer job description (which said nothing about on-call coverage) to include that responsibility for its radiology department. It was not critical that Porter and her coworkers would go many months without ever actually being called in. Porter’s request that Tri-Health make the accommodation permanent was not reasonable because that would mean excusing her from an essential function and shifting the burden to other sonographers. The Court noted that Tri-Health had never exempted a sonographer entirely from on-call coverage. The Court also held that Tri-Health’s obligation to allow permanent intermittent FMLA leave did not extend to this permanent schedule change, which Porter had not limited to times that she was assigned on-call responsibility, had a flareup, and was actually called in—she said she could never be on call overnight. 

Tri-Health’s tailored job description was not its only saving grace, but if it had relied only on its generic sonographer job description, the case may have reached a jury instead of being tossed on summary judgment. For assistance with job descriptions and compliance with the ADA, the FMLA, and other employment laws and regulations, contact Nicole Gardner at Nicole@GardnerSkelton.com or Caleb Holloway at Caleb@GardnerSkelton.com

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