Employer’s Tolerance of Tardiness Raises Question Whether On-Time Arrival is Essential


Generally, employers feel safe asserting that timely attendance at work is an essential function of a job. In a recent case, however, circumstances caused the Second Circuit Court of Appeals to rule that this cannot be assumed and to require a fact-specific analysis instead. McMillian v. City of New York (2nd Cir. 2013).

McMillian was a case manager in the Human Resources department for the City of New York. The City’s flex-time policy permitted employees to arrive any time between 9 and 10 a.m. and to leave between 5 and 6 p.m. McMillian had schizophrenia and took medication that made him drowsy and sluggish in the morning. He routinely arrived to work late, sometimes after 11 a.m. Management tolerated McMillian’s tardiness for approximately 10 years—from 1998-2008—before disciplining him. McMillian requested a later start time of 10 to 11 a.m. and said that he would still work a 35-hour week by either working late or working through lunch. The City denied his request because there was no supervisor in the office after 6 p.m. The City then suspended McMillian for 30 days for tardiness.   

At trial, McMillian asserted that the later start time was a reasonable accommodation and offered evidence that he regularly worked until 7 p.m. and that the office was open until 10 p.m. The City responded that timely attendance was an essential function. The Second Circuit noted that timely arrival may normally be an essential function, but said that a fact-specific analysis must be conducted in every instance to confirm that. The Second Circuit remanded that case back to the lower court for further proceedings saying that a jury could find that timely arrival was not essential, based on the City’s tolerance of McMillian’s tardiness and its flexible start time. 

The takeaways from this case are: 1) employers should make clear that timely arrival is an essential function of an employee’s job; 2) employers should consistently enforce their attendance standards to avoid the appearance that meeting the standard is not an essential job function; and 3) employers must engage in the interactive process with employees who request accommodations like later start times to determine if such an accommodation is reasonable.