When Can You Come in Late as a Reasonable Accommodation for Your Disability?

When must the boss accommodate someone whose disability makes him late for work?
Rodney McMillan worked for ten years as a case worker for a New York City social services agency.  His job involved visiting clients at his office and going to their homes for annual home visits, processing clients’ eligibility for Medicaid, and making referrals to other social service agencies.  McMillan has schizophrenia, and the medication he took to control his symptoms caused him to be extremely drowsy in the morning.  As a result, he would typically report to work at 11 am. 
There was no allegation that McMillan was lazy or malingering; it was undisputed that McMillan’s severe disability required him to take the medication, and that the medication kept him from arriving to work at a consistent time each day
The city agency where McMillan worked allowed employees to work on a “flex time” schedule, whereby they had to report to work between 9 and 10:15 am, and could depart between 5 and 6 pm, so long as they worked 35 hours per week.  For about ten years, McMillan’s supervisor allowed him to remain at work after 6 pm to make up the time he missed in the morning. 
But in 2008, a new director required McMillan’s supervisor to deny him the right to start late and work late. When he was unable to comply, the city suspended him for 30 days as a disciplinary action.
McMillan sued under the Americans With Disabilities Act, alleging that he was entitled to a return to his old schedule as a reasonable accommodation.  He contended that he often worked past 7:00 p.m. and that the office was open until 10:00 p.m., so that he could arrive late and still work 35 hours per week.
The ADA requires that a person asking for reasonable accommodation must show that he is able to perform the essential functions of his position. The city argued that an ability to consistently arrive at work within a one-hour time frame was a fundamental requirement of McMillan’s position. The U.S. Court of Appeals for the Second Circuit thus had to determine whether physical presence at the job site was an essential function of McMillan’s position.
The Court considered the fact that for many years, McMillan’s late arrivals were
explicitly or implicitly approved, and that the City’s flex-time policy permitted all employees to arrive and leave within one-hour windows. It concluded that punctuality and presence at precise times may not be essential:
whether McMillan’s late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. ..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.
The Court observed that many other cases relied upon by the City were distinguishable, because the employees’ positions in those cases absolutely required that they be present in the office during specific business hours.  A footnote from the Court is particularly instructive:
(T)here is an important distinction between complete absence and tardiness in jobs that require work to be done at the office: an absent employee does not complete his work, while a late employee who makes up time does. Similarly, while it may be essential in many workplaces that all tasks be performed by employees who are both physically present and supervised, these requirements are not invariably essential. Thus, depending on the requirements of the position, an employee might need to be physically present and supervised only for certain tasks. By way of example, and without expressing any view on the question, it might be necessary for a supervisor to be present when McMillan meets with clients in the office, but not when he fills out forms.
One issue concerned McMillan’s request to work unsupervised after 6:00 p.m. The Court observed that this was not unlike a request to work from home. Both accommodations are
potentially problematic because they are unsupervised. Noting that unsupervised work might, in some cases, constitute a reasonable accommodation, the Court concluded that a jury could conclude that McMillan could perform portions of his job without supervision.
The Court concluded that the case had to be submitted to a jury for a factual finding as to whether arriving at a specific time was an essential function of the case manager position.
The case is McMillan v. City of New York, ___ F. 3d ___ (2013), Docket No. 11-3932, decided March 4, 2013.
This case demonstrates that “punctuality,” meaning being able to work from 9 to 5, is no longer always considered an essential function of every position. Instead, a factual inquiry must be conducted to determine the specific job duties, how and where they must be done, and whether and when supervision is required.  

If you have questions about whether you are entitled to reasonable accommodation for your disabling condition, the lawyers of Kalijarvi, Chuzi, Newman and Fitch are expert at advising you on your rights.  Call us at 202-331-9260 for further information.
–This blog post was prepared by partner Elizabeth L. Newman.  You may reach her at enewman @kcnlaw.com.