Look out employers. Be careful how you apply tardiness policies or you may run afoul of the Americans with Disabilities Act (ADA). In a case from the Second Circuit Court of Appeals, McMillan v. City of New York (2nd Cir. March 4, 2013), the court said arriving at work on time might not be an essential function if the employee could still complete his work in a timely manner.
The trial court had granted summary judgment for the employer. The Second Circuit reversed the decision, saying that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.”
The plaintiff was a case manager for NYC’s Human Resources Administration (HRA), who took medication in the morning which made him “drowsy” and “sluggish.” His severe disability, schizophrenia, required treatment that prevented him from arriving to work at a consistent time each day. He brought suit against the City under the ADA claiming that the City’s response to his request for accommodations was insufficient.
The HRA had an unusual policy of allowing flex hours so employees could arrive at the building between 9 a.m. and 10 a.m., and leave between 5 and 6 p.m. The plaintiff frequently arrived late, however, sometimes after 11 a.m. HRA had allowed him to be late for at least ten years, but then began requiring him to report to work on time.
The court, in reversing the summary judgment, said there needs to be “a penetrating factual analysis” into both the employer’s description of a job and how the job is actually performed in practice. The Second Circuit said that the fact that the employer allowed plaintiff to be late for many years, and the fact that the employer offers flextime “implies that punctuality and presence at precise times may not be essential”.
Adair Buckner is an Amarillo attorney with Buckner & Cross, L.L.P. She is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-322-7777 or email@example.com. This material is not intended to be legal advice. The contents are intended for general information purposes only.
To learn more about Adair and her practice visit her profile page andhttp://www.bucknercross-law.com/labor-and-employment-law/ .