Unconventional work scheduling as a “reasonable accommodation” has been the subject of several appellate decisions in the last eighteen months. The latest one, Solomon v. Vilsack, deals with flextime scheduling. Employment lawyer Paul Mollica discusses the case in his employment law blog and in this report.
The reasonable accommodation requirement runs counter to the notion that regular attendance at work is an “essential function” that employers are entitled to expect. The Solomon case deals with a Department of Agriculture employee who suffered from depression and who had been accorded a flexible work schedule to cope with the issues of her condition and medical treatment for it. The dispute arose when new supervisors refused to extend the flextime arrangement.
The D.C. Circuit held that “the agency may have erred in refusing to fully accommodate Ms. Solomon’s need to work on a flexible schedule.” The decision noted the increasing ease of working at home. Mollica says that the decision gives employers notice that timely attendance at work is no longer something courts will automatically affirm as an essential function.
The development of the Internet and the increasing ease of telecommuting will doubtless have a growing influence on attendance at work cases. Some jobs, such as flying a plane, will always require physical presence at work. Others, like clerical and administrative functions, will not.
Paul W. Mollica joined Outten & Golden LLP as Of Counsel in 2010. He is a frequent author and lecturer (for lawyers and courts) in the area of employment discrimination. He is a two-term past president of the Chicago Council of Lawyers, a public-interest bar association. He has been selected as a Super Lawyer© in Illinois and has the highest, AV© rating from Martindale-Hubbell. He is licensed to practice in Illinois and New York. The Legal Broadcast Network is a featured network of the Sequence Media Group.