Wednesday, 27 March 2013 09:13
By Lee Williams
Most employers consider punctual arrival at the worksite to be a basic requirement of their employees. Employees may beg to differ. Generally, however, on-time arrivals for work are considered an “essential function” of employment under the law. In a recent case, the U. S. Court of Appeals for the Second Circuit has decided that such is not always the case.
On-time arrival as an “essential function”
The Americans with Disabilities Act (the ADA) prevents employers from allowing employees to suffer adverse employment actions (i.e. demotions,, unequal pay, termination, etc.) based solely on a disability if an employee is able to perform the essential functions of a job. If an employee cannot perform the essential functions of his position, the employee may request a reasonable accommodation from the employer. Employers are then required to make an accommodation as long as the accommodation does not cause an unfair hardship on the employer.
Balancing company policy and employee disability
In this case, a schizophrenic employee for New York City (the “City”) brought an action against the City under the ADA. The City had a flexible arrival time policy, which allowed employees to get to the office anywhere between 9:00 a.m. and 10:00 a.m. The policy also stated an employee was not considered late unless they arrive after 10:15 a.m., due to excessive elevator wait times. An employee who ended up being tardy for work could have the tardiness approved or disapproved by their supervisor. If the tardiness was approved, the employee could apply any additional hour worked, referred to as “banked time,” to cover the time missed and still receive full pay for a 35 hour work week.
The employee’s schizophrenia required regular medication, which made the employee drowsy and sluggish in the mornings. Although the employee woke each morning between 7:00 a.m. and 7:30 a.m., he often arrived late to work due to his drowsiness. For approximately 10 years, the employee’s tardy arrivals were either explicitly or implicitly approved by his supervisor. In 2008, upper management directed the employee’s supervisor to refuse to approve any more of the employee’s late arrivals. Thereafter, the employee began to receive discipline for his late arrivals, so he made repeated verbal requests for a later start-time.
By March 2010, the employee’s continued tardiness resulted in charges being brought against the employee based on his inability to comply with the City’s policy. At a hearing on the charges, a City representative recommended the employee’s termination. The employee argued the medical effects of his schizophrenia were a mitigating disability, which should be accommodated by the City. Following the hearing, the employee formally requested an accommodation to arrive at work between 10:00 a.m. and 11:00 a.m. The employee stated he would work through his one-hour lunch break and even stay past the usual 6:00 p.m. departure time in order to reach 35 hours per week. The City denied the employee’s request because there was no supervisor in the office after 6:00 p.m.
Challenging the denial
The employee challenged the City’s accommodation denial under state and federal disability laws in federal district court. He alleged he often worked past 7:00 p.m. and that the office did not actually close until 10:00 p.m. The district court, giving considerable deference to the City’s determination that on-time arrival constitutes an “essential function of plaintiff’s job,” ruled in the City’s favor and dismissed the employee’s claims. The employee then sought review from the Second Circuit.
On review, the Second Circuit recognized timely arrival is normally an essential function of employment; however, it is not an essential function for all employment. Here, the employee’s tardiness was allowed for approximately 10 years prior to his supervisor’s change in policy towards the employee. The City’s flexible arrival policy also added weight to the Second Circuit’s determination that prompt arrival was not an essential function for the employee. The Second Circuit found the employee could meet his weekly 35 hours of work if permitted to arrive late, work through lunch, and work past 6:00 p.m. to accumulate “banked time.” The Court stated it would not be an undue hardship for the City to allow the employee to work past 6:00 p.m. unsupervised based on his existing work history where he routinely worked past 7:00 p.m.
Employers should keep in mind that providing excessive flexibility to their employees can have negative results. Allowing employees to bend workplace rules over an extended period of time shows workplace rules are weakly enforced, or worse, disregarded by supervisors and management. If an employer wishes to portray to the courts that prompt arrival is an essential function of employment, it should treat on-time arrival as such.
Read the case here.