• Reporting to Work On Time is Not Always an Essential Job Function
  • March 12, 2013
  • Law Firm: Clifton Budd DeMaria LLP - New York Office
  • Earlier this week, in McMillan v. City of New York, the Second Circuit Court of Appeals concluded that an employer is not always entitled to insist that an employee report to work on time. The decision, rendered under the Americans with Disabilities Act, underscores how important it is for employers to enforce their rules consistently. Variations that result from a failure to do so can establish that affected work tasks and standards are not essential to an employee’s job.

    In McMillan, an employee had been suspended for excessive tardiness. The employee’s tardiness was the result of the side effects of a medication that he took for his medical condition. The employee had reported late to work for many years, but the New York City agency for which he worked tolerated his lateness. But a new supervisor viewed the situation differently and suspended the employee for excessive tardiness. The employee sued, claiming that agency did not accommodate his disability.

    The District Court granted summary judgment to New York City, dismissing the employee’s claims. It concluded that punctuality was an essential function of the employee’s position. The Second Circuit disagreed. It reversed and sent the case back to the District Court for further analysis. It concluded that it could be a reasonable accommodation to allow the employee to arrive late and complete his work by either working through his lunch or after regular hours. The Second Circuit’s analysis turned on existing agency rules on flextime that allowed all employees to arrive later in the morning-but not as late as this employee-and leave later in the evening after making up the time. It was also significant that the agency had permitted the employee’s tardiness before his new supervisor started. The Second Circuit rejected the notion that arrival by a particular time or physical presence is always an essential function of the job.

    The McMillan decision highlights both the importance of conducting an open-minded and fact-specific analysis when addressing issues related to accommodating disabilities and the propriety of being consistent in enforcement of rules.