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Is Being On Time an Essential Function of Job? Second Circuit Says Most Times But Not Always

Posted in Discrimination & Harassment, Highlight, Human Resources (HR) Compliance, Litigation, Manager & HR Pro’s Resource Center

I’m late / I’m late / For a very important date. / No time to say “Hello, Goodbye”. / I’m late, I’m late, I’m late. — White Rabbit, from “Alice in Wonderland” (1951)

Let’s start with the premise, as the Second Circuit does, that “In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff’s inability to arrive on time would result in his failure to establish a fundamental element of a prima facie case of employment discrimination.”

What happens when an employee’s severe disability requires treatment that prevents him from arriving to work at a consistent time each day? Who wins?

The Second Circuit addressed those questions this week in a decision, McMillan v. City of New York. It’s an important case because it emphasizes that what works in “most” cases, may not work for all.  And an employer can no longer just rely on punctuality as being essential for all jobs. 

Because it was not “evident” that a timely arrival for work was essential for this particular employee, the Second Circuit remanded the case back to the District Court for further analysis.

Hurting the employer was the fact that it had a flex-time policy that let employees arrive and leave within a one-hour window, which, the court said, “implies that punctuality and presence at precise times may not be essential.”

The key quote is this: “physicial presence at or by a specific time is not, as a matter of law, an essential function of all employment.” 

As a result, a court must engage in a fact-specific inquiry — making it more difficult for employers to get the case dismissed on summary judgment.

Employers who believe in punctuality should make it clear in various places just as job descriptions, collective bargaining agreements, and  employee handbooks, and should make sure that its practice is consistent with its policies as well. 

The Wait a Second blog has more details on the case here.