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Flip-side of the Yahoo Debate: When is Flex Time a Legal Right?

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Yahoo! No really, YAHOO!! Last week, Yahoo's CEO got caught in a media firestorm over her decision to eliminate employees’ working-from-home option. But let’s not get Yahoo’s business mandate confused with every employers’ legal obligations to consider flexible work arrangements when it comes to the Americans with Disabilities Act (ADA). Even Yahoo still must comply with disability rights laws.

As this new court ruling shows, when employees suffer disabilities, you may have to loosen up your rigid work timetables …

Case In Point: Rodney McMillan, an HR case manager for New York City’s Community Alternative Systems Agency (CASA), suffered from schizophrenia. His morning medications cause him to feel drowsy and sluggish, so he took advantage of CASA’s flex-time policy. Employees could arrive at work anytime between 9 and 10 a.m. — with 10:15 being considered late. They could leave any time between 5 and 6 p.m., provided they work 35 hours per week.

McMillan's late arrivals were approved for a while, but his supervisor one day told him he could no longer be late. McMillan repeatedly asked for a later starting time but was denied. McMillan’s supervisor suggested he ask his doctor to change his medication regimen. The doctor said he couldn’t.

Eventually, CASA suspended McMillan without pay for his late arrivals. He formally requested as an accommodation for his schizophrenia, allowing him to arrive before 11 a.m. The request was denied without talking to McMillan.

McMillan sued under the ADA and state disability law, saying he frequently worked later than 7 p.m. and was willing to work through lunch to cover his late arrivals.

Result: A lower court sided with the city, saying McMillan’s proposed accommodation of working late and working through lunch was an “undue hardship” on the agency. He appealed.

The verdict: The appeals court sided with McMillan and sent the case to a jury to decide. The appeals court scolded the lower court, saying it “relied heavily on its assumption” that a physical presence in the workplace is an essential function of virtually all jobs. That’s not always the case and may not be in McMillan’s situation. A jury will decide.

Plus, the court said the city’s flextime policy—which allows workers to arrive and leave within one-hour blocks—suggests that punctuality isn’t essential at the agency. (McMillan v. City of New York, 2nd Cir., 3/4/13)

3 lessons learned … without going to court

  1. Examine each situation on a case-by-case basis. The appeals court observed, “This case highlights the importance of a penetrating factual analysis. Such an inquiry was not conducted” by the lower court. Remember to engage in a timely interactive process with the employee to consider reasonable accommodations.
  2. Make sure your policies don’t contradict your practices. The appeals court noted that punctuality was not really an “essential element” of the job because it had a flextime policy. It was a working contradiction.
  3. Be careful when you change the rules. The appeals court highlighted that McMillan was not punctual in the past and it was acceptable. When the rules changed, something smelled fishy. Remember, Yahoo may have just changed its own rules, but it didn’t change our laws.

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