Human Resources News & Insights

How this firm’s flex-time came back to bite it in disability case

If you’re one of the thousands of companies that offer flex-time, this new disability decision will likely be of special interest.

Rodney McMillan worked for the city of New York’s Human Resources Administration, which had a flex-time policy allowing staff to arrive between 9 and 10 a.m.

That was relevant for McMillan– he has schizophrenia. The medication he takes to treat the mental illness makes him drowsy and sluggish in the mornings. As a result, he sometimes would be late for work, not showing up until 11 a.m. on some days.

The city accommodated McMillan for 10 years, excusing his tardiness as long as he made up the hours he missed.

But starting in 2008, the company decided it could no longer excuse his repeated tardiness. Why? His manager said she “wouldn’t be doing [her] job if [she] continued to approve a lateness every single day.”

McMillan requested a later start time to avoid discipline, but his request was denied. The reason: No one would be at the office to supervise his work after 6 p.m.

As a result, McMillan began being disciplined repeatedly. This led to meetings with his superiors, fines, additional disciplinary action and, finally, a 30-day suspension without pay.

On-time arrival not essential for all jobs

McMillan then sued the city, claiming it failed to accommodate his disability. He argued that his requested accommodation was reasonable — he usually worked past 7 p.m., and the office was open until 10 p.m. He also offered to work through his lunch breaks if necessary.

A district court ruled in the city’s favor, but an appeals court reversed the decision.

Yes, in most jobs, arriving on time is without a doubt an essential function of most people’s jobs, wrote John M. Walker, Jr., the circuit judge.

But “it is not evident that a timely arrival at work is an essential function of McMillan’s job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.”

The takeaway

So what’s the upshot of the case for employers?

Daniel Schwartz over at the Connecticut Employment Law Blog sees the necessity of spelling out the importance of arriving on time for positions that require it:

Employers who believe in punctuality should make it clear in various places just as job descriptions, collective bargaining agreements, and employee handbooks, and should make sure that its practice is consistent with its policies as well.

Lisa McGarrity from Franczek Radelet cautions employers against bending the rules for one employee:

This case reminds us that in providing flexibility to employees, employers must be mindful of unintended consequences. If a workplace rule has been bent, an employer may be precluded from citing the rule later in support of a decision to refuse a request for an accommodation as unreasonable. A job function may be considered essential only if an employer has consistently treated it as such.

And Maria Danaher at Employment Law Matters reiterates the burden companies must surpass to prove that a requested accommodation is unreasonable:

An employer who is analyzing a disabled employee’s request for accommodation must be able to compile and present factual, statistical, or narrative evidence of the manner in which a proposed accommodation would create an undue hardship, in order to both effectively accommodate the employee in a fair and reasonable manner, and to defeat any potential failure-to-accommodate claim under the ADA.

The case is McMillan v. City of New York.

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