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Total Articles: 4

Plaintiff Who Could Get to Work On Time By Waking Up An Hour Earlier Was Not Entitled An Accommodation Allowing Her to Be Late.

Years ago, I had a legal assistant who was unable to get to work on time. I finally told her that she had to be in at 8:30 as that was when everyone else started their work day. Three days later, she appeared in my office, walked in and slapped a speeding ticket on my desk and insisted that I pay it because it was my fault that she was speeding to get to work on time.

Timely Arrival at Work Not Always an Essential Job Function

In a case involving a schizophrenic employee whose medication caused him to feel drowsy and sluggish in the morning, the Second Circuit Court of Appeals has ruled that on-time arrival at work is not always an essential job function. In McMillan v. City of New York, McMillan, the plaintiff, worked as a case manager for New York City’s Human Resources Administration (HRA), conducting home visits, processing social assessments, recertifying clients’ Medicaid eligibility, referring clients to other social service agencies, and otherwise meeting with clients and addressing their concerns. HRA had a flex-time policy allowing employees to arrive at work anytime between 9:00 and 10:00 a.m. Due to elevator wait times at HRA’s offices, employees were not considered tardy unless they arrived after 10:15 a.m. An employee whose late arrival was approved by a supervisor could use “banked” leave time to cover time missed. An employee whose late arrival was not approved was subject to discipline.

"Reasonable accommodation" may include adjustments to work schedule, even beyond an agreed-upon flex-time schedule.

Employers are aware of the fact that the Americans with Disabilities Act (ADA) requires them to engage in an interactive process in order to determine whether a disabled individual can be accommodated to assist him or her in performing the essential functions of a job. In determining the essential functions of a position, most employers assume that physical presence and arrival at work at a consistent time are essential functions of most jobs.

Third Circuit says accommodation may include shift change that assists with commute to work.

In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work. In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time employee’s schedule to day shift – because her monocular vision made it dangerous for her to drive at night – could be a reasonable accommodation under the ADA