Reprinted from the December 1, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Do You Have To Accept An ADA Alibi For Attendance Offenses?

Not waking up in time for work is an inexcusable reason for an employee’s consistent lateness. But what if an employee can’t get up in time due to medication to treat a disability? The Americans with Disabilities Act (ADA) could make the tardiness excusable.

SOUND THE ALARM
“The medication I take for anxiety and depression makes it difficult for me to wake up and leaves me feeling lethargic. I realize I have a problem getting here on time because of it. If possible, can I work a flexible schedule?” supervisor Meg McAllister asked her manager, Benjamin Kwon.

“What kind of schedule are you looking for?” Kwon asked in response.

“Well, it usually takes me a couple hours to get going in the morning, so I’ll make it in when I can, but then I’ll work late,” she proposed.

“I can’t allow you to work whenever you feel like working, especially since you’re in a supervisory position. Come in at 8:30 and work until 4:30,” Kwon said.

“I don’t think a half-hour delay will make a difference,” McAllister worried.

“Just try this schedule for a month and we’ll see what happens,” Kwon stated.

EMPLOYEE GETS WAKE-UP CALL
The pressure of a schedule aggravated her anxiety, so McAllister went on medical leave for two months. At the end of that period, her doctor recommended she work only half days for a while. She had difficulty sticking to the schedule that Kwon insisted on, 8:30 to 12:30.

A month later, the doctor gave her a green light to work full days again. However, her tardiness issues continued; plus she was often absent altogether.

“You’ve been late 53 times in six months, and absent 15 times, well beyond your sick-day allotment. That is unacceptable.” At that point, Kwon fired McAllister.

A LEGAL NIGHTMARE
McAllister sued the company for discrimination under the ADA. The company argued that regular and reliable attendance was necessary, and it could not accommodate her need for a flexible schedule. The employee countered that, despite her tardiness, she still worked at least 40 hours a week and completed all of her work on time.

A court sent the case to trial to determine whether regular and reliable attendance was indeed a requirement of the job. McAllister will have a chance to show evidence that supervisors and staff regularly worked flexible hours.

DON’T FALL ASLEEP ON THE JOB
There’s nothing wrong with expecting employees to be punctual. However, when an employee requests a flexible schedule in order to accommodate an ADA disability, your inflexibility can work against you.

Accommodating an individual with a modified work schedule may involve adjusting arrival or departure time, providing periodic breaks, or altering when certain job tasks are performed, according to guidelines from the EEOC. The agency even provides an example that is similar to McAllister’s situation.

Example: An accountant for a small employer whose medication for depression causes extreme grogginess in the morning may not be able to begin work at 9:00 a.m., but could work from 10:00 until 6:30 without affecting her ability to complete tasks in a timely manner.

The fact that McAllister got her work done in a timely manner could show a court that regular and reliable attendance is not a necessary element of her job.

However, the EEOC’s example differs from McAllister’s situation in that the employer in the example can actually set a specific start time, while McAllister’s employer cannot. One factor the court in McAllister’s case will consider is whether the open-ended schedule creates an undue hardship. If modifying the employee’s work hours would prevent other employees from doing their jobs, then the significant disruption to the operations of the employer would constitute an undue hardship.

Example: It may be an undue hardship to adjust the arrival time for someone on a construction crew if it would affect the ability of others to begin work.

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