The Working Paper - June 2013: Court Rules That On-Time Arrival at Work May Not Be an Essential Function of an Employee’s Job


Most employers likely think that on-time arrival at work is an essential function of an employee’s job. However, a federal appeals court recently ruled that may not always be the case. In McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013), the U.S. Court of Appeals for the Second Circuit, which has jurisdiction over New York State, ruled that under certain circumstances an employer might have to tolerate an employee’s late arrival to work as a reasonable accommodation under the Americans with Disabilities Act (ADA).

In McMillian, the employee worked in the New York City Human Resources department for 10  years. The departmentoperated under a flex-time policy that allowed employees to arrive any time between 9:00 a.m. and 10:00 a.m. The employee suffered from schizophrenia and took medications each morning that made him feel drowsy and sluggish, and as a result, he frequently did not arrive at work until after 11:00 a.m.

For at least 10 years prior to 2008, the employee’s late arrivals were either explicitly or tacitly approved. However, in 2008 the employee’s supervisor refused to allow any more late arrivals, stating that she would not be doing her job if she continued to approve a lateness every day. After his supervisor stopped approving his late arrivals, the employee made repeated verbal requests for a later start time. He also later made a formal written request for a later flex start time that would allow him to arrive at work between 10:00 a.m. and 11:00 a.m. All of the requests were denied and the employee was subsequently disciplined, including being recommended for termination that was later reduced to a 30-day suspension. The employee then sued under the ADA and New York City Human Rights Law alleging that he had been denied a reasonable accommodation and discriminated against because of his disability.

The district court dismissed the employee’s lawsuit finding that the employee could not perform an essential job function, arriving  to work on time, and that the employee could not show that the City’s explanation for suspending him, his habitual lateness, was a pretext for disability discrimination. However, the Court of Appeals reversed the district court and reinstated the lawsuit. The appeals court said that although on-time arrival might normally be an essential function for most jobs, in the employee’s situation the evidence suggested that punctuality and attendance in the workplace at precise times were not absolutely required. In reaching its decision, the appeals court relied on the City’s tolerance of the employee’s late arrivals for at least 10 years and the existence of its flex-time policy that allowed employees to arrive at various times. Therefore, the appeals court remanded the case for a trial at which a jury would be able to determine whether the employee’s late arrivals substantially interfered with his ability to perform his essential job functions.

This case serves as a reminder that the consideration of what may be a reasonable accommodation must be made on a case-by-case basis and that an employer may have to modify as basic a requirement as an employee’s work start time. In most jobs, arriving at a specific time is indeed an essential job function. However, in some work environments it may not be. Employers faced with a request for reasonable accommodation allowing an employee to vary the times the employee arrives at or leaves work should carefully review and consider such requests and not reject them out of hand. Any rejection of such a request should explain the legitimate business reasons why attendance at work between the established hours is necessary.