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Subscribe by EmailADA and Work Tardiness: Is Coming to Work Late a Reasonable Accommodation?
I don’t know how often this has come up in your organization, but schedule changes are likely to become increasingly common reasonable accommodations for people with disabilities.
The question is: are they legally required? What do you think?
In this court case involving a request for coming to work at a later time:
The employee requested a more flexible schedule because her medication for anxiety and depression made it difficult to be at work on time (oh, you didn’t know this could be a disability?). Her boss refused to let her come at any time she felt like, but offered to let her come 30 minutes later and work 30 minutes later.
The new schedule only increased her anxiety, so the employee took medical leave for several months, then worked half days for a while (8:30 to 12:30).
Shortly thereafter, she went back to work full-time, but her boss wasn’t pleased, noted that she was frequently tardy and absent. As a result, she was fired.
She sued under ADA and this case is going to trial. The employee will try to show that she was able to work the required 40 hours and that other employees had flexible hours. The company will argue that regular hours are a work requirement in this company.
A big factor may be the nature of the job; in other words, does showing up late affect other employees’ work or is the employee’s attendance unrelated to the ability of other workers to get their work done.
The EEOC certainly notes the possibility of schedule changes as an accommodation (e.g., in its latest document on cancer in the workplace, the EEOC gives this example: An engineer working independently on a long-term project has to undergo radiation for cancer every weekday morning for the next eight weeks. The employer should consider whether it could provide a flexible schedule (e.g., allow him to come in later or work part-time) to accommodate his treatment).
Bottom line: Be careful with ADA requests for schedule flexibility; it may be deemed a reasonable accommodation! Read more about this case on ADA and schedule flexibility at Ahipubs.com.
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Comments
Curiously, the EEOC has suggested that it does not consider attendance to be an “essential function.” In an online presentation in 2003, EEOC Acting Deputy General Counsel Nick Inzeo said:
“EEOC treats attendance as a job-related requirement, rather than an essential function. This is because attendance is not the function that the employee performs, although we consider regular and reliable attendance to be important.”
This suggests that the EEOC may treat someone unable to meet the attendance requirements as “unqualified” for the position, regardless of whether their lack of regular attendance is due to a disability or some other reason. In other words, if someone can’t meet the job’s attendance requirements, they may not be qualified for the job nor protected by the ADA….
There are many cases holding that regular and reliable attendance is an essential function of most jobs, meaning it need not be modified in the name of reasoonable accommodation.
But as this case points out, this may not be true of many jobs, particularly given the changing, more mobile and individualistic nature of many jobs these days.
Flexibility of hours — or lack thereof — should perhaps be included in job descriptions, so that attendance requirements of different jobs could be distinguished. The ADA takes a job description as evidence of the essential functions.
Some people may be allowed more flexibility due to the nature of their work, and others held more closely to a regular schedule, so as to work with or supervise others, service customers, etc.