The D.C. Circuit joins those courts with a new Rehabilitation Act decision holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.Solomon v. Vilsack, No. 12-5123 (D.C. Cir. Aug. 15, 2014): It was once standard for federal courts to hold that regular, timely attendance at work was inherently an essential function, without much analysis. But the Second Circuit in McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013), and Sixth Circuit in EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014), recently challenged that shibboleth, holding that when employees demonstrate that non-traditional schedules or telecommuting can accommodate a disability, employers may in turn need to evaluate such a proposal on the merits.As is often the case in ADA and Rehabilitation Act cases, the plaintiff's difficulties began when new supervisors refused to extend a prior accommodation.

Why not flex a little more? Making a supervisor available past 6:00 would be an undue hardship, but maybe the employee could bank some time to draw on when his late arrival cut into his work hours. McMillan v. City of New York, No. 11-3932 (2nd Cir. March 4, 2013).Consider now why your employees need to be at work by certain times. At least one court rejects “unthinking reliance on intuition” about job duties.

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.