Court: ADA might cover employee’s chronic tardiness

by Walter Olson on March 13, 2013

Or, Prof. Bagenstos headlines it at Disability Law, “Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function.” Reversing a summary judgment in favor of the employer, the judges found that a schizophrenic case worker whose medication caused morning drowsiness was entitled to a trial on his claim that he could have accomplished the job by working extra to make up for time missed early in the day. [McMillian v. City of New York; Disability Law; Paul Mollica, Outten & Golden]

{ 8 comments }

1 James 03.13.13 at 1:15 pm

This strikes me as clearly correct. How could punctuality be, as a matter of law, an essential job function? For some jobs it would be; for others it wouldn’t.

2 Bob Lipton 03.13.13 at 4:11 pm

Oh, judge, I have an amicus brief on that case from 1993….

Bob

3 BM 03.14.13 at 12:54 pm

? He cant shift his medication times by one hour? What does he do during daylight saving? I’m missing something here.
And geeze, I start at 8am. 10am would be great.

4 Cloudesley Shovell 03.14.13 at 2:28 pm

James–Name me five occupations where you, as an employer, would tolerate your employees showing up whenever they feel like it. Next, name five occupations where you, as a customer, would tolerate those persons who are supposed to meet your needs as a customer showing up whenever they feel like it.

You shouldn’t have any trouble. However, I think you are way way off on your cavalier “some yes, some no” theory. The number of jobs where one can truly set ones own hours are a rather tiny percentage of all jobs.

Kind regards,
CS

5 James 03.14.13 at 2:57 pm

Cloudesley – The fact that very few occupations could allow for varying start times is not really relevant. If it is possible for a reasonable jury to find that some occupations, particularly the occupation at issue in the case, do not require timeliness as an essential job function, summary judgment is inappropriate. The fact that the City allowed the late arrivals for two years is in fact excellent evidence that timeliness was not essential to this particular job.

6 Cloudesley Shovell 03.14.13 at 7:34 pm

James, you are absolutely correct that given the facts of this particular case, summary judgment was inappropriate. My larger point (and perhaps you agree), is that an employer should be free to amend the terms of employment. The employee is just as free to quit at any time. I’m also very curious about the facts of this particular plaintiff’s drug regimen. Why not shift the times for taking medication? If you can be awake and alert from 11 am to 8 pm, but not 9 am to 5 pm, what’s so hard about adjusting? What does the poor guy do when springing ahead and falling back with daylight savings time?

Kind regards,
CS

7 J. W. 03.16.13 at 5:03 pm

What do you bet he’ll show up at court on time?

8 ParatrooperJJ 03.18.13 at 3:32 pm

It also would be covered under FMLA.

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