Punctuality is not always an essential job function - especially when inconsistently applied
 June 28, 2013

On March 4, 2013, a federal court ruled that on-time arrival at work is not always an essential job function under the Americans with Disabilities Act. In McMillan v. City of New York, the plantiff worked as a case manager for New York City's Human Resources Administration (HRA), conducting home visits, processing social assessments, recertifying clients' Medicaid eligibility, and referring clients to other social service agencies. He was schizophrenic and his medication caused him to feel drowsy and sluggish in the morning.

HRA had a flex-time policy allowing employees to arrive at work anytime between 9:00 and 10:00 a.m. Due to elevator wait times, employees were not considered tardy unless they arrived after 10:15. An employee whose late arrival was approved by a supervisor could use "banked" leave time to cover time missed. An employee whose late arrival was not approved was subject to discipline. For 10 years, McMillan's late arrivals were approved. Then, his supervisor determined that she could no longer put up with his tardiness and began to discipline him. McMillan formally requested a later flex start time between 10:00 and 11:00 am, to accommodate his disability. HRA refused his request, primarily because there was no supervisor in the office after 6:00 p.m. If McMillan started at 11:00 a.m., his work at the end of the day would be unsupervised. But, HRA did not conduct an interactive process or address changed business reasons to enforce the stricter punctuality requirement.

A trial court judge deferred to the agency's determination that punctual arrival was an essential job function and threw out the lawsuit. The Court of Appeals disagreed. While it recognized that timely arrival is an essential function of most jobs, it was not evident from the individual circumstances that a timely arrival at work was an essential function of McMillan's job. The court was persuaded by HRA's flex-time policy and its historical tolerance of McMillan's tardiness. According to the court, both indicate that HRA may not regard timely arrival as essential. The case was remanded to the district court for further proceedings.

Prevention Strategies: This result would also be likely under California Fair Employment and Housing Act (FEHA). If a performance standard or workplace rule has been adjusted or disregarded, your company may be precluded from relying on the policy to support your declination of the worker's request. A job function may be considered essential only when it is consistently treated as essential. Any changed business circumstances that alter the mix of essential and non essential job functions must be well documented. To avoid the result here, the City should have done three things: (1) communicate the importance of the start time based on evolving business needs; (2) confirm its intent to enforce the start time consistently; and (3) engage in the interactive process to determine whether (or not) a flexible schedule was still a reasonable accommodation for this worker.

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