Punctuality is not always an essential job requirement under the ADA

The Americans with Disabilities Act continues to find ways to confound us. In this case, the Court of Appeals asks when an employer must accommodate someone whose disability makes him tardy for work. Does the ADA require the employer to adjust his work schedule?

The case is McMillan v. City of New York, decided on March 4. Plaintiff, a case manager for the City's Human Resources Administration, takes medication for his disability that makes him sluggish and drowsy. As the Second Circuit writes, "Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day." For 10 years, management allowed plaintiff to arrive late. Eventually that leeway ended, and plaintiff was suspended. The district court granted the City's motion for summary judgment, concluding that an timely arrival to work is an essential function of the job. The Second Circuit (Walker, Livingston and Droney) reverses and remands for trial.

Under the ADA, the employer must provide the disabled employee with a reasonable accommodation, but the employee must still be able to perform the essential job functions. This fact-intensive analysis depends on the unique nature of each job. Or "penetrating factual analysis," the Court of Appeals says. It may be that plaintiff does not have to come in on time. He was able to arrive late to work for years and still get his work done. The employer has a flex-time policy that lets employees arrive and leave within a one-hour window, which "implies that punctuality and presence at precise times may not be essential." The Court of Appeals says for the first time that "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." A jury can find in plaintiff's favor on this issue.

Plaintiff also identifies a reasonable accommodation that would not pose an undue hardship for the City: he can work during lunch and also work late. The City already allows employees to "bank" any hours they work in excess of seven hours per day and apply banked time toward late arrivals. In other words, the City permits flexible hours for its employees. While supervisors cannot work past 6:00 p.m., plaintiff was unsupervised when he made home visits or worked past 7:00 pm. The City also lets people work during lunch with advance approval.

Finally, the district court should not have required the plaintiff to prove that the City offered a pretextual reason for his punishment. If the plaintiff is disciplined because of his disability, you don't have to show pretext, which is only useful when the plaintiff's case turns on circumstantial evidence. The Court says, "it is undisputed that McMillan was tardy because of his disability and that he was disciplined because of his tardiness. In other words, McMillan was disciplined because of his disability." Pretext is not the issue. The issue is whether plaintiff can show that, with reasonable accommodations, he could have performed the essential functions of the job.