Too Sick To Get to Work On Time?

If you always come late to work due to a serious illness, can your boss fire you?  Or must an employer allow this as a “reasonable accommodation” under the Americans With Disabilities Act?  This was the question recently considered by the U.S. Court of Appeals for the 2nd Circuit in New York.  The case is McMillan v. City of New York, 711 F. 3d 120 (2d Cir. 2013).

Rodney McMillan worked as a case manager for a New York city social services agency.  His job involved conducting annual home visits, processing social assessments, recertifying clients’ Medicaid eligibility, making referrals to other social service agencies, and addressing client concerns. He also met with clients daily in the office.  He has schizophrenia, which is treated with medication.

The agency had a flex-time policy that allowed employees to arrive at the building anytime between 9:00 and 10:00 a.m. Due to elevator wait times, they were not considered late unless they arrived at the office after 10:15 a.m. When an employee was late, the boss could approve or disapprove the late arrival.  If it was approved, the employee could use his or her vacation or sick leave to account for the missed time. 

McMillan usually got up between 7:00 and 7:30 a.m., but his morning medications made him “drowsy” and “sluggish.” As a result, he often arrived late to work, sometimes after 11:00 a.m. For a period of at least ten years, McMillan’s tardy arrivals were either explicitly or tacitly approved. But when a new supervisor arrived, he refused to approve any more of McMillan’s late arrivals. McMillan repeatedly asked whether he could have a later start time to avoid being disciplined for tardiness. But the boss responded that he could not have a later start time because it would mean that in order to put in a full day’s work, he would have to stay past 6 p.m., and this would not be allowed because no supervisor would be present.

As a result, the agency began to discipline McMillan for his late arrivals, first with a fine, then with charges of “Misconduct and/or Incompetence,” and then with a recommendation that he be fired.  In response, McMillan formally requested accommodations for his disabilities, including a later flex start time that would permit him to arrive at work between 10:00 a.m. and 11:00 a.m. But the agency decided that McMillan’s request for a later flex start time could not be accommodated because there was no supervisor at the office after 6:00 p.m. Ultimately, the City reduced the recommended sanction of termination to a thirty day suspension without pay.

McMillan sued.   He claimed that since the office was open until 10 p.m., the agency should have allowed him to work past 6 p.m. as an accommodation for his disability.  He also suggested that he could work through his lunch hour and still get his time in before 6 p.m.  The City did not allege that McMillan was a malingerer, and did not dispute that the only reason McMillan was unable to get to work by a specific time was the result of the treatment for his disability. But they maintained that neither allowing him to work through lunch nor staying after 6 p.m. was required as a reasonable accommodation.

The lower court agreed with the agency, holding that being able to work during the normal work day  was an “essential function” of McMillan’s job, and that the agency did not discriminate against him when it disciplined him for his tardiness.  As a result, the District Court granted summary judgment for the agency and did not let the case go to trial.

The 2nd Circuit disagreed with the lower court’s analysis.  Instead, it held that a fact-specific inquiry must be made into whether being physically present at work at all times was actually an essential function of every job:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City’s representation that arriving at a consistent time was an essential function of McMillan’s position. While the district court’s conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m. — or at any consistent time — may not have been an essential requirement of McMillan’s particular job. For many years prior to 2008, McMillan’s late arrivals were explicitly or implicitly approved. Similarly, the fact that the City’s flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan’s favor, along with his long work history, whether McMillan’s late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute.

The 2nd Circuit ruled that McMillan should be given the opportunity to demonstrate to a jury that it would not have been an undue hardship to allow him to work past 6 p.m. unsupervised, especially since it was uncontested that some of the duties he performed during the day were unsupervised, such as home visits to clients.  The court also noted that it would not have been a hardship to allow McMillan to work through his lunch hour to make up the time he lost in the morning.

This case erodes the time-honored principle that an employer can require presence at work from 9-5 as a basic work requirement.  Instead, consideration as to what may be a reasonable accommodation must be made on a case-by-case basis, and an employer may have to modify as basic a requirement as an employee’s work start time. Many jobs may still require arriving at a specific time as an essential job function.  But in others, it may not be.  The ADA requires that the employee and employer engage in an “interactive process” to determine whether the employee’s request is reasonable and whether the employee’s needs can be met without causing undue hardship to the employer. 

    – this blog post was prepared by Elizabeth L. Newman.  She can be reached at