Not so Fast: On-Time Attendance Not Always Essential Function of Job!

Posted 08-05-2013

Once again, we are reminded that analysis of a disability accommodation request must involve an interactive process with the employee, an individualized decision process, and documentation.  In the case of McMillian v. City of New York, 2013 U.S. App. LEXIS 4454 (2d Cir. Mar. 4, 2013), Mr. McMillian worked for the City of New York in Human Resources Administration as a case manager for about ten years. He required daily medication treatment for schizophrenia, which often caused him to be drowsy in the morning and arrived to work later than the 9-10am flex start time. After tolerating this for a number of years, the City decided in 2008 that “on-time” attendance was essential. McMillian continued to be late, so the City decided to terminate his employment, two years after requiring on time attendance. But after a grievance hearing, the discipline was reduced to a one-month suspension. McMillian then formally asked for a reasonable accommodation of a later start time. The City’s EEO manager discussed the issue with management, but never with McMillian, and then determined that on-time attendance was an essential function of the job and found the later start time to be an unreasonable accommodation and denied the request. McMillian sued for failure to accommodate his disability, but the trial judge dismissed the case, essentially upholding as a matter of law the City’s determination that on-time attendance was an essential function of the job and that McMillian’s request to come in later could not be a reasonable accommodation.

On appeal, the Second Circuit held that attendance is not, as a matter of law, an essential function of all jobs. Therefore, since the City did not offer undisputed evidence in support of this decision, the trial judge’s decision was in error. Further, since the City made its reasonable accommodation decision without discussion with Mr. McMillian and his representative, the City failed in its duty to engage with the plaintiff in an “interactive process” to decide the issue.  The lower court’s ruling was overturned and the case sent back for hearing.

What this means to you: If attendance is an essential function of the job, it should be stated in the job description and supported with documentation of the rationale for such decision. And, if attendance is important, attendance standards should be consistently applied, and documented.  Further, when a reasonable accommodation is considered, the employer must involve the employee in the decision-making process. For individual managers, this means they must understand the basics of the law on disability and reasonable accommodation, recognize when the issue is presented, and the importance of consulting immediately with HR and Legal. Since most managers do not have sufficient experience with this area of the law, once they are notified, the interactive process will be directed by HR and Legal.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2015-06-12T21:41:28+00:00

About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.