Second Circuit Holds That Whether On-Time Attendance Is An Essential Function Is A Fact-Based Determination

Employers beware – you cannot assume that on-time attendance is an essential function of every job, as the U.S. Court of Appeals for the Second Circuit recently ruled. In McMillian v. City of New York, the court held that the determination of which jobs compel on-time attendance requires a fact-based analysis, which must include the consideration whether an employee's "physical presence" in the workplace is in fact necessary.  

In an era where more employers are allowing telecommuting, remote work, and flexible hours, employers that want their employees to report to a physical place and be on time should take steps now to make sure that these requirements are documented so that it can be proven that attendance is in fact an "essential function of the job."