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Second Circuit Holds That Whether On-Time Attendance Is An Essential Function Is A Fact-Based Determination
March 25, 2013
In an era where more employers are allowing telecommuting, remote work, and flexible hours, employers that want their employees to report to a physical place and be on time should take steps now to make sure that these requirements are documented so that it can be proven that attendance is in fact an "essential function of the job." The plaintiff in McMillian v. City of New York, 2013 U.S. App. LEXIS 4454 (2d Cir. Mar. 4, 2013), worked for the City Human Resources Administration as a case manager for approximately ten years. As a case manager, the plaintiff was required to conduct annual home visits, process social assessments, recertify clients' Medicaid eligibility, and perform other related tasks. The plaintiff had schizophrenia, which was treated with calibrated medication. He claimed that his morning medications made him drowsy or sluggish and, as a result, he would frequently arrive late to work, sometimes after 11:00 a.m. For a period of about ten years – from approximately 1998 to 2008 – the plaintiff's tardy arrivals were overlooked by management. In 2008, however, senior management's perspective on the tardy arrivals changed. The plaintiff's supervisor stopped approving his late arrivals, resulting in the plaintiff making numerous verbal requests for a later start time to avoid being disciplined for tardiness.
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