Almost always an employee's physical presence in the workplace at or by a specific time is an essential function of the job. But not always as the Second Circuit concluded recently in McMillan v. City of New York, No. 11-3932 (March 4, 2013), a case where it reversed a summary judgment granted by the district court.
Rodney McMillan, who suffered from the disability of schizophrenia, was a caseworker for a New York City social services agency. The medication he took for his schizophrenia made it difficult for him to be on time for work. Nevertheless, his tardiness was tolerated and/or sanctioned for about 10 years, and he proved a successful employee. But a new supervisor decided that McMillan's tardiness could no longer be tolerated and, as a result, he was terminated. He sued under the Americans With Disabilities Act (ADA) claiming disability discrimination, and that the city had failed to reasonably accommodate his disability. The district court ruled that McMillan could not perform the essential functions of his job, since he had so much trouble getting to work on time.
The Second Circuit, emphasizing that ADA cases require that courts avoid "unthinking reliance" on intuition about how a job must or should be performed and instead conduct a specific factual inquiry into how the job is performed in practice, reversed, concluding that McMillan had a unique work situation that did not necessarily support the conclusion that his tardiness prevented him from performing the essential functions of his job.
The court held that an employee's physical presence in the workplace at or by a is not an essential function of all jobs. McMillan's, the court explained, may present an exception based on two factors:
- he successfully performed his job for about 10 years with the same tardiness issue that the city now claimed was essential and he should be fired for.
- the city had a flex-time program that gave employees a hour leeway on the time they reported to work.
Robert L. Abell
www.RobertAbellLaw.com
