Arriving to work on time might not be an essential function if the late employee would still be able to complete his work in a timely manner, according to the Second Circuit Court of Appeals. McMillan v. City of New York (2nd Cir. March 4, 2013).

The plaintiff, a case manager for NYC’s Human Resources Administration (HRA), took medication in the morning which made him “drowsy” and “sluggish.” The HRA had flex hours which allowed employees to arrive at the building between 9 a.m. and 10 a.m., and leave between 5 and 6 p.m. Plaintiff often arrived late, sometimes after 11 a.m. After allowing plaintiff to be late for at least ten years, HRA began requiring him to report to work on time.

Reversing summary judgment to the HRA, the Second Circuit said that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.”  Citing the need for “a penetrating factual analysis” into both the employer’s description of a job and how the job is actually performed in practice, the Second Circuit said that the fact that the employer allowed plaintiff to be late for many years, and the fact that the employer offers flextime “implies that punctuality and presence at precise times may not be essential.”