How Important is Attendance at Work?

clockbuildings_72DPI_RGBThe answer seems obvious. The employer must decide what hours of work are best for producing its products or serving its customers, and employees must maintain regular and reliable attendance during those hours. In fact, non-exempt employees are paid by the hour because they only provide value for the company when they are at work and performing their assigned tasks.

So attendance would seem to be an “essential job function,” which need not be altered when an employer is considering an employee’s request for reasonable accommodation under the Americans with Disabilities Act (“ADA”) and the similar Connecticut state law. But attendance as an essential function cannot be treated as a rigid rule.

In the recent case of McMillian v. City of New York, decided by the Second Circuit Court of Appeals last March, a case manager for the City’s Human Resources Administration took regular medication which made him drowsy in the morning, and for 10 years his supervisors overlooked chronic tardiness in reporting to work. When the supervisors abruptly switched and started requiring timely attendance, the employee asked for a later starting time as an accommodation, which was denied. He sued, and the court decided that the issue of accommodation was at least an open question (that is, summary judgment was denied) because lateness had been tolerated for years, and the need for the employee’s presence at a precise time in the morning was not proven. Also, as so often happens in ADA cases, the employer was criticized for not engaging in the interactive process with the employee.

The take-away from this case is that even a request for different working hours cannot be dismissed out of hand. The interactive process is beneficial to employers, not only because it is required by law, but because it lets the employer analyze the accommodation request and prepare a business rationale if the request is going to be denied. It also avoids having a disciplinary decision look like a supervisor’s whim, which is never going to impress the court if litigation ensues.

This blog/web site presents general information only. The information you obtain at this site is not, nor is it intended to be, legal advice, and you should not consider or rely on it as such. You should consult an attorney for individual advice regarding your own situation. This website is not an offer to represent you. You should not act, or refrain from acting, based upon any information at this website. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship with any reader of this blog. Any links from another site to the blog are beyond the control of Pullman & Comley, LLC and do not convey their approval, support or any relationship to any site or organization. Any description of a result obtained for a client in the past is not intended to be, and is not, a guarantee or promise the firm can or will achieve a similar outcome.

Subscribe to Updates

About Our Labor, Employment and Employee Benefits Law Blog

Alerts, commentary, and insights from the attorneys of Pullman & Comley’s Labor, Employment Law and Employee Benefits practice on such workplace topics as labor and employment law, counseling and training, litigation, union issues, as well as employee benefits and ERISA matters.

Other Blogs by Pullman & Comley

Connecticut Health Law Blog

Education Law Notes

For What It May Be Worth

Recent Posts


Jump to Page