In recent years, federal courts have struggled with employers' obligations to provide reasonable accommodations under the Americans with Disabilities Act that impact commuting and working hours. Earlier this month, the Second Circuit Court of Appeals reminded employers that such accommodation requests must be individually analyzed for reasonableness, and that they cannot make blanket assumptions about a job's essential functions.

In McMillan v. N.Y.C., the plaintiff suffered from schizophrenia, and medication used to control the disorder caused him to be sleepy and sluggish in the morning. After being counseled for tardiness, he requested a flexible work arrangement that would allow him to arrive at work later in the morning and either work through lunch or stay later in the evenings to make up missed time. The employer declined this accommodation, and the plaintiff sued under the ADA after he was terminated for absenteeism.

The Second Circuit reversed a grant of summary judgment for the employer. The court disputed the trial judge's conclusion that timely physical presence at work is an essential function for virtually every job. While not concluding that this was not the case here, the Second Circuit said that the plaintiff's claims should be subjected to a detailed individual analysis as to whether flexible hours were a reasonable accommodation for this specific position.

For example, the court noted that the plaintiff's department stayed open late at night. It also stated that the City already had a flex-time policy that would only have had to be extended in the plaintiff's case. The Second Circuit's opinion illustrates that assumptions about what is needed to perform a job can lead to ADA trouble if employers fail to engage in an individual interactive process. While being at work at regular times may be an essential element of most jobs, rejecting an accommodation request for flexible time without actually analyzing the impact of the request on the business opens the company to claims that it failed to provide reasonable accommodation.