ADA Case - Is Arriving at Work on Time An Essential Job Function?

by Adair Melinsky Buckner on May. 31, 2013

Employment Employment  Employee Rights 

Summary: Be careful how you apply tardiness policies or you may run afoul of the Americans with Disabilities Act (ADA)

tardiness may not fall under an essential job functionLook 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 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 and .

Legal Articles Additional Disclaimer is not a law firm and does not offer legal advice. Content posted on is the sole responsibility of the person from whom such content originated and is not reviewed or commented on by The application of law to any set of facts is a highly specialized skill, practiced by lawyers and often dependent on jurisdiction. Content on the site of a legal nature may or may not be accurate for a particular state or jurisdiction and may largely depend on specific circumstances surrounding individual cases, which may or may not be consistent with your circumstances or may no longer be up-to-date to the extent that laws have changed since posting. Legal articles therefore are for review as general research and for use in helping to gauge a lawyer's expertise on a matter. If you are seeking specific legal advice, recommends that you contact a lawyer to review your specific issues. See's full Terms of Use for more information.