NYC Federal Court Approves Late Arrival as a Reasonable Accommodation

Reasonable accommodation in the context of employment discrimination against people with disabilities has been a complex and frequently unclear issue. What is reasonable is often a subjective determination that requires a close examination of the facts in every case.

There are some general rules that have been applied in the context of reasonable accommodation. For instance, the ability to arrive at work on time had usually been considered to be an essential function of most jobs. This means that person who is consistently unable to arrive to work on time is not a “qualified individual” as defined in the ADA, even if that tardiness is due to a documented disability. The Second Circuit Court of Appeals, however, has recently proven that every rule has exceptions:

• In McMillan v. City of New York, the Second Circuit recently reversed a trial court’s grant of summary judgment in favor of the City finding that the ability to arrive on time is not always an essential job function. In that case, a City employee who suffered from schizophrenia requested that he be allowed to arrive at work later in the day and make up the time over lunch and into the evening in order to accommodate him for the morning drowsiness brought on by his psychiatric medication. When the City refused, McMillan brought suit.

• The district court dismissed McMillan’s claims on summary judgment, finding that he had failed to prove he could perform the essential functions on the job, including arriving on time. On appeal, the Second Circuit disagreed, finding that the law did not establish that the ability to arrive on time was an essential job function per se — and that an in-depth and fact-specific analysis was required to determine whether timely arrival was indeed an essential job function.

This ruling could have the effect of making it easier for plaintiffs in New York City disability discrimination cases to establish a prima facie case under the ADA as well as parallel state and local laws.