Second Circuit Holds that Timely Arrival to Work Is not Always an Essential Function of the Job Under Disability Discrimination Laws

Last week, on March 4, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Connecticut and Vermont), reaffirmed the importance for an employer to conduct a fact-specific analysis in considering requests for reasonable accommodation under the Americans with Disabilities Act (ADA).
In McMillan v. City of New York, it was undisputed that McMillan’s disability necessitated treatment that prevented him from arriving to work at a consistent time each day. The Second Circuit noted that although in most contexts, timely arrival at work is considered an essential function of the job, which could render futile any attempts to reasonably accommodate the situation, it was not at all entirely clear whether timely arrival at work was an essential function of McMillan’s job. Under McMillan’s circumstances, he could offset the time missed with additional work hours in order to complete the essential functions of his job.
Ultimately, McMillan sued the City under the ADA, the New York State Human Rights Law, and the New York City Human Rights Law, alleging among other things that because the office remained open until 10:00pm, and he often worked past 7:00pm, he would still be able to arrive late and work the requisite number of full time hours per week.


The District Court (Southern District of New York) had dismissed his claims of disability discrimination, under the ADA and New York State and New York City laws. The Second Circuit reversed, and stated the following:
“For many years prior to 2008, McMillan’s late arrivals were explicitly or implicitly approved. Similarly, the fact that the City’s flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan’s favor, along with his long work history, whether McMillan’s late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. . . . Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.”
The Second Circuit concluded that dismissal of the claims was premature, and that a jury could find in McMillan’s favor.

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