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Disability Discrimination: Is Late Arrival A Reasonable ADA Accommodation?

On Behalf of | Mar 21, 2013 | Disability Discrimination |

The early bird may catch the worm, but what about the one that gets there late?  According to the Second Circuit Court of Appeals, if being late to work is a result of a disability, the employee may have a claims under the Americans with Disabilities Act (“ADA”).  In McMillan v. City of New York, the Court of Appeals was faced with the question of whether showing up to work on time was an essential function of the job.  The answer?  Mostly, yes – but not in this case.

Let’s look at the facts of this case.  Rodney McMillan had schizophrenia, which he controlled with medication.  But, the medication had the side effect of making him extremely drowsy in the mornings, which in turn caused him to be late.  For over 10 years, his employer accommodated his undisputed disability by allowing him to make up two to three hours of the missed time at the end of the shift.  The employer also had a flex time policy that allowed its employees an hour leeway at the beginning and end of each shift. Then, everything changed in 2008, and the employer refused the accommodation despite McMillan repeated requests under the ADA and support from the opinions from two treating physicians that his medication schedule could not be changed.

So, McMillan sued the employer under the ADA for disability discrimination.  But the trial court dismissed the case holding that timeliness is an essential job function and that the employee’s requested accommodation was unreasonable.  The Court of Appeals reversed – but did not specifically find in favor of McMillan.  Instead, the Court of Appeals held that the trial did not conduct a sufficiently detailed and complete analysis of the facts of this particular case.  The key portion of the holding explains further:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City’s representation that arriving at a consistent time was an essential function of McMillan’s position. While the district court’s conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan’s particular job. For many years prior to 2008, McMillan’s late arrivals were explicitly or implicitly approved. Similarly, the fact that the City’s flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan’s favor, along with his long work history, whether McMillan’s late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute.

This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.

So what does this mean? It is easier to start with what this employment disability discrimination decision does not mean.  It does not mean that everyone employee with a disability can set their own schedule, even if medically necessary.  It also does not mean that changing a schedule is always a reasonable accommodation.  What we can from this is that courts will have to look at the facts of each disability discrimination case on case by case basis.  One thing that our employment disability discrimination lawyers know that is better than a dismissal.  And, it also opens up the argument that there are questions of fact that should b left to the jury.  Both of these factors increase the value of settlement.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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