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Is Being on Time an Essential Function of the Job? - Not as a Matter of Law

Is being on time an essential function of a job? - not as a matter according to the Second Circuit in a recent decision entitled McMillan v. City of New York. The court found that the "physical presence at or by a specific time is not, as a matter of law, an essential function of all employment." What this means for disability discrimination, employment cases is that it is a case-by-case fact-specific analysis to determine if being on time for work is an essential function of the job.

In McMillan, the plaintiff was disabled. He took medication for his disability. The medication made him sluggish and drowsy. As a result, he was unable to arrive to work at a consistent time. For 10 years, his employer allowed the plaintiff to arrive late to work. The the flexibility ended and the defendant suspended the plaintiff. Defendant claimed that the arrival to work was an essential function of plaintiff's job. The Second Circuit found that a fact-specific inquiry must be performed, by the jury, to determine if timely arrival to work was an essential function of the job.

As part of the factual inquiry, the following should be considered: (1) was the plaintiff allowed to come in late in the past; (2) does the employer offer flex time; (3) does the employer allow employees to bank extra time and apply it toward late arrivals; (4) does the employer allow employees to work from home; (5) are there documents identifying that arrival to work on time is essential to the job; and (6) has the employer been able to articulate the reason why arrival to work on time is essential.

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