Article from The Daily Record – Tuesday, April 23, 2013
Does the ADA require an employer to accommodate an employee whose disability makes him late?
The plaintiff, a case manager for the City of New York Human Resource Administration, takes medication for his disability that makes him sluggish and drowsy. As the Second Circuit writes, “Rodney McMillan’s severe disability requires treatment that prevents him from arriving to work at a consistent time each day.”
For 10 years, management allowed the plaintiff to arrive late. Eventually, that leeway ended, and plaintiff was suspended. The district court granted the city’s motion for summary judgment, concluding that a timely arrival to work is an essential function of the job. The Second Circuit reversed and remanded for trial, McMillian v. City of New York, No. 11-3932, March 4.
Under the ADA, the employer must provide the disabled employee with a reasonable accommodation, but the employee must still be able to perform the essential job functions. This fact-intensive analysis depends on the unique nature of each job.
The Court of Appeals said for the first time “physical presence at or by a specific time is not a matter of law, an essential function of all employment. While 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.” A jury can find in the plaintiff’s favor on this issue.
The plaintiff also identifies a reasonable accommodation that would not impose an undue hardship for the city: he can work during lunch and also work late. The city already allows bank employees to “bank” any hours they work in excess of seven hours per day and apply banked time toward late arrivals. In other words, the city permits flexible hours for its employees.
Additionally, the court found that the district court should not have required the plaintiff to prove that the city offered a pre-textual reason for his punishment. If the plaintiff is disciplined because of his disability, you don’t have to show pretext, which is only useful when the plaintiff’s case turns on circumstantial evidence.
Here, the court says, “it is undisputed that McMillan was tardy because of his disability and that he was disciplined because of his disability.” Pretext is not the issue. The issue is whether plaintiff can show that, with reasonable accommodations, he could have performed the essential functions of the job. Perhaps most useful is the court’s determination that when assessing whether an employee can perform the essential job functions, a fact intensive analysis should take place due to the unique nature of each job.
