When Is Your Employer REQUIRED To LET You Show Up LATE?

You may think the answer is “never,” but the law never lets you say “never.”  I have recently posted about an employer’s duty to provide “reasonable accommodations” to a “qualified individual with a disability.”  This is required of most employers by the Americans With Disabilities Act (the “ADA”) and Chapter 151B if the Massachusetts General Laws (also known as the Massachusetts Fair Employment Practices Act.)

Many people with disabilities can do their jobs without any accommodation at all.  Some, however, require accommodations.  An “accommodation” is essentially ANY modification that allows an employee to perform the “essential functions” of his or her job.  What constitutes a “reasonable” accommodation depends on the particular job duties, the employer’s resources and other factors specific to that job and/or that employer.

In addition to being “reasonable” from a cost and feasibility standpoint, an accommodation is required under the ADA only if it would allow the employee to actually perform the “essential” functions of his job.  That is, an employee is not entitled to ask the employer to eliminate or delegate an essential — as opposed to “marginal” — function of the job.  An “essential” function is one that is central to the overall purpose of the job itself.  If eliminating the function eliminates the purpose of the job in the first place, then that function is “essential.”

For instance, someone working as a lawyer in Massachusetts must maintain a Massachusetts license to practice law.  You typically cannot obtain that license without passing the Massachusetts Bar Examination.  It is legitimate for a Massachusetts law firm to require me – as a condition of employing me as a lawyer – to maintain a license to practice law in Massachusetts.   If a legitimate disability prevented me from passing the bar examination, I cannot ask my law firm to excuse me from passing the bar exam as a reasonable accommodation, because maintaining a license is essential to my ability to practice law, and you cannot have one without the other.  (This is a hypothetical, of course.  I really DID pass the bar exam. . . in 1997. . . when I was 14, or at least that is what I tell my kids about how old I was.)

Here is another example.  When we walk into a bank, most of us are used to seeing the bank tellers standing behind a counter or window.  Maybe banks require tellers to stand – I have no idea.  If you think about it, however, there is nothing particular to the job itself that REQUIRES standing – a bank teller can still accomplish what he needs to accomplish sitting down.  Suppose a bank teller with an autoimmune disease (such as rheumatoid arthritis) tires easily when standing.  Providing that teller with a stool (even if the bank’s policy requires tellers to stand) is, in my opinion, a perfectly reasonable accommodation that the bank must provide to a disabled person who is otherwise qualified to be a bank teller.  That is an easy one.

Seriously, though, is it EVER “reasonable” to REQUIRE an employer to ALLOW it’s employee to show up for work LATE?  According to at least one Court, the answer is “sometimes.”  In a 2013 case, the Second Circuit Court of Appeals held that arriving to work on time is not ALWAYS an essential function, and sometimes allowing an employee to arrive late is a reasonable accommodation.  The employer in this case was the City of New York’s Community Alternative Systems Agency (“CASA”).  CASA provided personal care services for eligible recipients.  The employee at issue was one of CASA’s case managers.  His job duties included conducting annual home visits, recertifying clients’ eligibility, and meeting with clients daily in the office.  Certain of those job duties required supervision.  Others did not.

The employee also suffered from schizophrenia, and was treated with calibrated medication.  This medication caused side effects that, in turn, caused the employee to often arrive late for work (sometimes after 11:00 a.m.).  Initially, his supervisor allowed the employee to arrive late and make up time later in the day.  The employee always completed his daily job functions when allowed to work late (to make up time missed when he arrived late.)  Later, a replacement supervisor would not allow the employee to continue his prior practice.  The employee was eventually disciplined, and ultimately terminated for excessive tardiness.

The Second Circuit held that, because of the nature of this particular employee’s job duties – many of which could be performed without supervision and at varied times of day – arriving to work late COULD be considered a reasonable accommodation.  That is, it was not ESSENTIAL that the employee arrive at work at a particular time every day.

Of course, the result in this case is probably exceptional.  For most jobs, arriving to work on time is essential – but not necessarily for EVERY job.  Going back to my bank teller example, if the bank opens to customers at 9:00 a.m., the bank probably needs its tellers at work by 9:00 a.m.  It would be difficult (although perhaps not impossible) for my bank teller to show that arriving to work at 9:00 a.m. is a marginal function.

The above Second Circuit case is an example of why it is so important to analyze each accommodation request based on its own circumstances.  The one thing you can NEVER do in these cases is draw broad conclusions that will apply across the board (or across the bank. . .  or across the bar. . . you get the point.). If you are an employee struggling with these issues, do not assume and stop there.  Gather more information and understand your rights.