The Americans with Disabilities Act (ADA) requires employers to engage in an interactive process with a disabled employee to determine whether the employer can provide a reasonable accommodation under the ADA to the disabled employee. A reasonable accommodation under the ADA requires that the employee be able to perform essential functions of a position. Recently, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis to determine whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.
Rodney McMillan has schizophrenia and has been employed by the City of New York, for ten years. McMillan’s agency has a flex-time policy, and approves tardiness under certain circumstances. McMillan’s medication can make him sluggish, which resulted in his late arrival to work several times. The tardiness is a function of the treatment for his condition.
Prior to 2008, McMillan’s tardiness was never a problem. Then, in 2008, his supervisors refused to approve any more late arrivals. McMillan requested a later start time, but was told that this was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour, but that suggestion also was rejected.
In 2009, McMillan was fined eight days’ pay for late arrivals and was ultimately suspended for 30 days without pay for his “long history of tardiness.”
McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m., so he could arrive late and still work the required 35 hours a week.
The district court granted summary judgment for the City, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. On appeal, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”
The Second Circuit pointed out the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.
The take-away is that a Reasonable Accommodation under the ADA may require an employer to allow for flexible working time for its employees, where such a reasonable accommodation would still enable that employee to perform the essential functions of his or her position.