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. However, the 2d U.S. Circuit Court of Appeal recently reversed summary judgment in favor of an employer, and returned the case to the lower court for additional factual analysis of whether an individual whose medication kept him from coming to work on time could be disciplined for attendance violations based upon that lateness. McMillan v. City of New York, 2d Cir., No. 11-3932, March 4, 2013.

Rodney McMillan has schizophrenia and, with calibrated medication, has been employed by the City of New York, first for ten years as a case manager with the City’s Human Resources Administration (HRA) and then, since 1997, as a case manager for the HRA Community Alternative Systems Agency (the Agency). In that job, McMillan conducts home visits, processes social assessments, and meets with clients on a daily basis in the Agency’s office.

The Agency has a flex-time policy which allows employees to arrive at work between 9:00 and 10:00 a.m. (although, because of elevator wait-time, an employee is not considered late until 10:15), and leave between 5:00 and 6:00 p.m., so long as they work 35 hours each week, excluding a one-hour break for lunch. Tardiness can be “approved” or “disapproved” by a supervisor. When tardiness is approved, an employee may use sick leave or other “banked” time – additional hours worked – to cover the time missed in order to be paid for a full week of work. However, an employee who has no time banked, or does not wish to use banked time, simply is not paid for the missed time. Tardiness that is disapproved can lead to disciplinary action.

McMillan’s medication makes him drowsy and sluggish in the morning, which often makes him late for work, meaning he comes in after 10:15 in the morning. There is no dispute that McMillan’s inability to get to work on time is a function of the treatment for his condition. 
                                                                                                                                                                               For a period of at least 10 years prior to 2008, McMillan’s tardiness was either explicitly or tacitly approved. However, in 2008, his supervisor (Thornton), at the direction of her supervisor (Belthrop) refused to approve any more of McMillan’s late arrivals. McMillan then made a request for a later start time to avoid discipline for tardiness, but was told that a later start time was not possible because McMillan would then have to work after 6:00 p.m., after which no supervisors were present. McMillan also stated that he would be willing to work through his lunch hour and “bank” that time in order to make up for his late start. That suggestion also was rejected.

In May of 2009, McMillan was fined eight days’ pay for late arrivals. In December 2009, Belthrop recommended additional discipline based on McMillan’s “long history of tardiness,” and the City subsequently recommended that McMillan’s employment be terminated. Ultimately, the City reduced the recommended sanction from termination to a 30-day suspension without pay.

McMillan sued the City, alleging violation of the ADA. In support of his claim, McMillan argued that his requested accommodations were reasonable, as he often worked past 7:00 p.m. (the office actually is open until 10:00 p.m.), so he could arrive late and still work the required 35 hours a week.

The district court granted summary judgment for the City, and dismissed all of McMillan’s claims, holding that the court was “required to give considerable deference to the employer’s judgment” as to whether timely arrival at work was an essential function of a particular job. On appeal, however, the Second Circuit reversed, finding that while a “timely arrival is normally an essential function,” the lower court did not conduct a fact-specific inquiry into McMillan’s situation. Instead, the lower court “appears to have simply assumed that McMillan’s job required at least seven hours of work each day and that the work could not be successfully performed by banking time on some days to cover tardiness on others.”

However, the Second Circuit pointed out a number of circumstances that called that conclusion into question, including the facts that McMillan’s lateness had been allowed for years without discipline, and that the City allows flex time hours and regularly permits employees to “bank” time to cover certain late arrivals, all of which undermine the City’s assertion that it would have been an undue hardship to grant McMillan’s request for modified work hours.

The take-away for employers in this case is that the Second Circuit’s reversal of the favorable decision for the employer was based on the fact that the lower court simply accepted the City’s assertion that McMillan’s requested accommodation of further variation to his work hours would have been an undue hardship for the City. 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.