Arriving on Time is Not an Essential Function of Every Job

In both New York and New Jersey, employers are required to provide reasonable accommodations to disabled employees to allow them to remain employed. A reasonable accommodation is a change or modification to the way your job is performed that allows you to remain employed despite having a disability. However, employers are not required to provide accommodations that would eliminate an “essential function” of the job.

Last month, the Court of Appeals for the Second Circuit ruled that although arriving at work on time is an essential function of most jobs, it is not an essential function of every job. The case, McMillan v. City of New York, was filed by Rodney McMillan. Mr. McMillan has a severe disability, schizophrenia. The medication he takes to treat his condition often makes him drowsy and sluggish. As a result, he is often unable to arrive at work until after 10 am. Nonetheless, he successfully worked as a case manager for the City of New York for almost 25 years.

New York City Employment Law.jpgHowever, New York City eventually disciplined Mr. McMillan because of his repeated lateness. In response, he requested reasonable accommodations including shifting his work hours back an hour, and allowing him to work during his lunch hour to “bank” time to make up for days on which he arrived late. NYC denied his request and eventually suspended him for 30 days without pay. Mr. McMillan then filed a disability discrimination lawsuit claiming NYC suspended him because he is disabled, and failed to accommodate his disability, in violation of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYHLR) and the New York City Human Rights Law (NYCHLR).

The District Court dismissed Mr. McMillan’s claim. It ruled that arriving at work on time was an essential function of Mr. McMillan’s job. Accordingly, it found NYC was not required to grant the accommodations he requested since they would have eliminated an essential function of his job.

But on appeal the Second Circuit reversed the District Court’s ruling. It explained that although courts should give significant deference to an employer’s determination about which job functions are essential, that is only one factor a court should consider. For example, other relevant factors can include the written job description for the position, how much time the employee spends performing the job function, and the experiences of other past and present employees who have held the same or similar jobs with the employer.

The Second Circuit ruled that although arriving on time is an essential function of most jobs, it is not necessarily an essential function of every job. More specifically, it found unique facts about Mr. McMillan’s job that make it less clear whether arriving on time was an essential function of his job. For example, his department has a flex-time policy that allows employees to arrive at work anytime between 9:00 and 10:00 a.m. without being considered late. In addition, NYC permitted Mr. McMillan to arrive after 10:00 a.m. when necessary for more than a decade. Accordingly, the Court ruled that it should be left to a jury to determine whether arriving on time was an essential function of Mr. McMillan’s job.


If you have been denied a reasonable accommodation at your job, or have lost your job because you employer denied you a reasonable accommodation in New York or New Jersey, we can help. Contact us at 201 487-2700 to schedule a meeting with one of our employment lawyers.

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