Court: Flexible time schedule may be a reasonable accommodation

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In a case with potentially far reaching implications for employment discrimination claims, the U.S. Court of Appeals for the Second Circuit revived a case March 4 in which an employer disciplined an employee whom repeatedly showed up to work late due to his disability.

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“This case highlights the importance of a penetrating factual analysis,” the court stated in its 18-page opinion. “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.”

The plaintiff, Rodney McMillan, has worked as a caseworker at New York City’s Human Resources Association since the late 1980s. The HRA requires employees to arrive between 9 and 10 a.m. at work.

McMillan takes daily medications for his schizophrenia that make him “sluggish in the morning.” As a result, he often arrives as late as 11 a.m.

This was not a problem until 2008, when McMillan’s supervisor informed him she “wouldn’t be doing her job if she continues to approve a lateness every single day.”

McMillan, who works 35 hours per week including a daily hour lunch break pursuant to a collective bargaining agreement, requested that his daily work hours be shifted to 11 a.m. to 7 p.m. He also provided two letters from his treating psychiatrist stating that his medication schedule should not be altered.

The city nonetheless attempted to fire him in 2010, only agreeing to reduce his discipline him with a 30 day unpaid suspension after going through a hearing mandated by the collective bargaining agreement.

Under the Americans with Disabilities Act, an employee can not be disciplined on the basis of his disability if he can perform the essential functions of his job with or without a reasonable accommodation, which means the accommodation can not impose an undue burden on the employer.

In August 2011, Judge Jed Rankoff of the U.S. District Court for the Southern District of 2011 dismissed McMillan’s case, finding that he could not perform the essential function of the job. The 2nd Circuit’s decision sends the case back to the District Court, under the instruction to do a more thorough analysis of the facts.

In finding that a “reasonable juror” may find that McMillan could perform the essential functions of the job, the court noted his long history working at the HRA. Additionally, the court noted that that the employer’s policy of allowing one hour, from 9 to 10 a.m., for employees to arrive “implies that punctuality and presence at precise times may not be essential” to the employee’s job functioning.

The city had also defended its decision not to allowed the suggested, accommodated work schedule on the grounds that for his last hour each day, he would not be supervised at work. The 2nd Circuit found this argument unpersuasive, noting that McMillan presumably is not supervised when conducting home visits in his capacity as a caretaker.

“We are pleased with the decision,” Michael O’Neill, McMillan’s attorney, told Reuters. “I think the signature point of the decision is that it puts an end to the notion that showing up for work at a specific time is a central component of a job.”