“It’s unfortunate that Lynn suffers migraine headaches every morning when she wakes up,” said Supervisor Margie Brunton. “However, her request to come into work two hours late every day in order to manage her migraines didn’t add up for us.”
“Lynn thinks we should’ve tried harder to accommodate her disability,” said HR Manager Alan Frankel.
“We allowed Lynn to arrive two hours late when she needed to,” said Margie. “She just had to use sick days for the missed work time.”
“Lynn argues that she shouldn’t have been forced to burn through her sick days when she arrived two hours late,” said Alan. “She’s suing us for disability discrimination.”
“We needed Lynn to be here on time every day,” said Margie. “Keep in mind that the missed two hours amounted to one-quarter of her work shift.”
“Lynn says she made up the work time by staying late when she needed to do so,” said Alan.
“That’s true,” said Margie. “However, Lynn sometimes missed important meetings and training sessions when she came in late. And her job required interaction with her colleagues, which didn’t happen when she arrived two hours after everyone else had already started their workdays.”
“Lynn points out that we approved her previous request to sometimes come in 15 minutes late, and she didn’t have to use sick time for that,” said Alan.
“Showing up 15 minutes late once in a while isn’t the same thing as arriving two hours late every day,” said Margie. “Let’s fight this lawsuit.”
Did the company win?
Yes. The employer won. The court said the woman failed to prove she was discriminated against because of her migraines.
Attendance can be an essential job function, said the judge, and because the worker couldn’t consistently come into work on time, she was unable to perform her job duties with or without a reasonable accommodation.
The woman made up the missed work time by staying late at the end of her shifts, but the court agreed with the employer’s assessment that she needed to be there at the start of each workday so she could go to meetings and training sessions as well as interact with her coworkers.
While the employee had previously been allowed to sometimes arrive 15 minutes late, the judge pointed out that occasionally coming in a little late isn’t the same thing as showing up two hours late every day.
What it means: Prove the need for work attendance
Keep in mind that under disability discrimination laws, attendance can be considered an essential job function, which means that a person who can’t consistently show up for work on time could be considered unqualified for the position with or without a reasonable accommodation.
Caution: The determination as to whether attendance is an essential work function is job-specific, so make sure you can prove the need for in-person attendance before you deny a disabled staffer’s request to come in late.
Based on Smithson v. Austin.
(From the Jan. 19, 2024, issue of HR Manager’s Legal Alert for Supervisors. To start your no-obligation, trial subscription to the publication right now, please click here.)