In a case involving a schizophrenic employee whose medication caused him to feel drowsy and sluggish in the morning, the Second Circuit Court of Appeals has ruled that on-time arrival at work is not always an essential job function. In McMillan v. City of New York, McMillan, the plaintiff, worked as a case manager for New York City’s Human Resources Administration (HRA), conducting home visits, processing social assessments, recertifying clients’ Medicaid eligibility, referring clients to other social service agencies, and otherwise meeting with clients and addressing their concerns. HRA had a flex-time policy allowing employees to arrive at work anytime between 9:00 and 10:00 a.m. Due to elevator wait times at HRA’s offices, employees were not considered tardy unless they arrived after 10:15 a.m. An employee whose late arrival was approved by a supervisor could use “banked” leave time to cover time missed. An employee whose late arrival was not approved was subject to discipline.

For 10 years, McMillan’s late arrivals were often approved. His supervisor determined that she could no longer put up with his tardiness, however, and he began receiving discipline for it. McMillan formally requested an accommodation for his disability:  a later flex start time between 10:00 and 11:00 a.m. HRA refused his request, primarily because there was no supervisor in the office after 6:00 p.m. If McMillan started at 11:00 a.m., his work at the end of the day would be unsupervised.

Deferring to HRA’s business judgment that arrival at work between 9:00 and 10:00 a.m. is an essential job function, the district court granted HRA’s motion for summary judgment. The Court of Appeals disagreed and overturned the lower court’s ruling. Although the appeals court recognized that “[i]n many, if not most, employment contexts, a timely arrival is an essential function of the position…it is not evident that a timely arrival at work is an essential function of McMillan’s job.” In support of its ruling, the appeals court cited HRA’s flex-time policy and its historical tolerance of McMillan’s tardiness. According to the court, both indicate that HRA may not regard timely arrival as essential. The case was remanded to the district court for further proceedings.

This case reminds us that in providing flexibility to employees, employers must be mindful of unintended consequences. If a workplace rule has been bent, an employer may be precluded from citing the rule later in support of a decision to refuse a request for an accommodation as unreasonable. A job function may be considered essential only if an employer has consistently treated it as such.