A long-time Virginia factory employee had a heart attack in 2002, recovered, and tried to return to work but discovered he was unable to work the long hours of his shifts. His doctor wrote that he could work no overtime, and his employer had difficulty finding him a 40-hour-per-week job. It also had trouble seeing his inability to work overtime as a disability.

What happened. “Butler” joined Corning as a maintenance engineer in 1989. Like most plant employees, he worked 10-hour days and alternated between 2 weeks on day shift and 2 weeks on night shift. Following his heart attack and an additional medical problem, however, it was clear to him and his doctor that that schedule wasn’t going to work for him.

From February through April 2004, Corning searched for a 40-hour-per-week job for Butler but was unable to find one. So in May, the company put him on long-term disability benefits. However, when the insurance carrier learned that he could work a 40-hour week, it withdrew benefits on October 1, declaring that Butler wasn’t disabled.

Butler complained to the Equal Employment Opportunity Commission (EEOC) that Corning had violated his rights under the Americans with Disabilities Act (ADA), and the EEOC agreed he had a case. Meanwhile, by April 2005, one of Butler’s healthcare providers sent Corning a new return-to-work certificate indicating that he could work 10 hours a day with limited overtime. With Butler’s union, Corning found and posted an 8-hour-per-day job plus overtime.

The spot was given to Butler in early September, and he continues to work at the plant. Still, his lawsuit went on to federal district court, where a judge ruled in Corning’s favor. Butler appealed to the 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

What the court said. Appellate judges agreed with the district judge that someone who can work 40 hours a week is not disabled from the major life activity of working, so the ADA did not protect Butler. They also noted that he had only been out of work from February 2004 to September 2005, receiving disability benefits for 5 months in that period. They also reviewed the changes to the ADA brought about by amendments effective in January 2009, suggesting that protection might have been available to Butler had those amendments been made retroactive. Boitnott v. Corning, U.S. Court of Appeals for the 4th Circuit, No. 10-1769 (2012).

Point to remember: This “nondisability” appears to be the kind of ADA loophole that Congress tried to plug with the 2009 amendments. But because Butler’s time out of work was so short, judges might still not have ruled for him.