Massachusetts Health Research Institute lets employees start work any time between 7 a.m. and 9 a.m. and leave after working seven-and-a-half hours. But data-entry worker Michael Ward usually arrived between 9:10 a.m. and 9:35 a.m., and sometimes as late as noon. He still worked a full shift.
When Ward failed to arrive by 9 a.m. for more than three months, he was given a warning. That's when he first told his supervisor he was late because arthritis caused stiffness and pain in the morning. Later, he provided a note from his doctor. But his tardiness continued. He asked the HR director for a modified schedule, but she refused without seeking further medical information. A few months later, he was fired for excessive tardiness. He sued under the Americans with Disabilities Act (ADA).
On the surface, it seems simple: Under the ADA, you don't have to employ anyone who can't perform the "essential functions" of a job. And most courts have ruled that reliable attendance is essential. A worker who has pain in the morning should get up earlier. But it isn't that simple. Ward was already getting up before 5 a.m. To get out of bed he needed to use a blow dryer to heat his legs for up to 45 minutes.
The 1st U.S. Circuit Court of Appeals, on hearing all this, ruled that while punctuality may be essential for most jobs, it isn't for all. Employers still must prove why a firm starting time is essential. Ward's work simply had to be completed before the lab opened the next day. (Ward v. Massachusetts Health Research Institute Inc., No. 99-1651, 1st Cir., 2000)
Advice: Before taking action against a worker for tardiness, ask yourself two questions: Could he be covered under the ADA? If so, how essential is his punctuality to the job? To determine whether attendance is essential, examine factors such as whether the employee must interact with other co-workers or customers and whether there is a time-sensitive nature to the job.
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