Under the ADA: Being On Time for Work Is An Essential Job Function…Most Of The Time

Posted by Jeanine Gagliardi on Sun, 08/18/2013 - 04:00

We often post about lawsuits filed against businesses under the ADA. Most ADA litigation concerns employers’ conclusions that employees are not capable of performing essential functions of their job or that a particular accommodation is not reasonable. In an opinion it recently issued, the United States Court of Appeals for the Second Circuit reminds employers, and the trial courts reviewing employers’ decisions, that such determinations must be made based upon fact-specific inquiries, not general rules.

The case arose out of the suspension of an employee without pay. The employee, a case manager, had schizophrenia. Because his morning medications made him drowsy, the case manager often arrived to work late. The case manager was suspended for multiple instances of tardiness that were not approved by his supervisor.

The case manager sued his employer, claiming, among other things, that the suspension was disability discrimination under the ADA. The trial court summarily rejected the case manager’s claim on the basis that showing up at work on time is an essential function of the case manager’s job. The trial court relied on the fact that the employer determined that on time arrival was an essential job function.

The case manager successfully appealed. Along with vacating the trial court’s decision, the appellate court criticized it for failing to conduct a fact-specific inquiry into whether the ability to consistently arrive at work on time was an essential function of the case manager’s job.

The appellate court did recognize that, “in many, if not most, employment contexts, a timely arrival is an essential function.” It also agreed with the trial court that the employer’s determination as to essential functions should be given considerable deference. On the other hand, it emphasized that courts making determinations about essential job functions must conduct fact-intensive inquiries of their own.

Here, the appellate court identified two factors which suggested that consistently arriving on time was not an essential function of the case manager’s job. One, for many years prior to the dispute before it, the case manager arrived late and those late arrivals were explicitly or implicitly approved by his supervisor. Two, the employer’s attendance policy permitted employees to arrive and depart work within one-hour time windows.

The case serves as an important reminder for all employers. Although a timely arrival is an essential function of many jobs, it is not an essential function in all. Employers must conduct fact-specific inquiries regarding essential job functions. Every circumstance is different. It is one of the things that makes ADA compliance such a challenge for employers.

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