Under the ADA, it may not always be considered and essential job function

By Michael LaVelle

The answer seems obvious. The employer must decide what hours of work are best for producing its products or serving its customers, and employees must maintain regular and reliable attendance during those hours. In fact, non-exempt employees are paid by the hour because they provide value for the company only when they are at work and performing their assigned tasks.

So, reliable attendance would seem to qualify as an "essential job function" as contemplated by the Americans with Disabilities Act (ADA) and the similar Connecticut state law. Under the ADA, although an employer must consider reasonable accommodations to enable a disabled employee to perform the essential functions of the job, the employer is not required to alter the essential functions of the job itself.

Tardy in New York

Attendance as an essential job function, however, cannot be treated as a rigid rule.

In the case of McMillan v. City of New York, decided by the Second Circuit Court of Appeals last March, a case manager for the City's Human Resources Administration took regular medication that made him drowsy in the morning, and for 10 years his supervisors overlooked chronic tardiness in reporting to work. When the supervisors abruptly switched and started requiring timely attendance, the employee asked for a later starting time as an accommodation, which was denied. He sued, and the court decided that the issue of accommodation was at least an open question (that is, summary judgment was denied), because tardiness had been tolerated for years, and the need for the employee's presence at a precise time in the morning was not proven. Also, as so often happens in ADA cases, the employer was criticized for not engaging in the interactive process with the employee.

Communication Is Critical

The takeaway from this case is that even a request for different working hours cannot be dismissed out of hand. The interactive process is beneficial to employers, not only because it is required by law but because it lets the employer analyze the accommodation request and prepare a business rationale if the request is going to be denied. It also avoids having a disciplinary decision look like a supervisor's whim, which is never going to impress the court if litigation ensues.

Michael LaVelle is a member of the law firm of Pullman & Comley LLC in Bridgeport. He can be reached at mlavelle@pullcom.com.

More information about reasonable accommodation under the Americans with Disabilities Act is available here.