Lingering Lateness Later Litigated: 11th Circuit Rules on ADAWhat happens if you give an employee an accommodation that goes above and beyond what the ADA requires? Can you change your mind down the road and stop providing that accommodation? Or are you stuck providing that accommodation forever – even though it’s unreasonable or no longer feasible? In Hartwell v. Secretary of the Navy, the 11th Circuit says you can change your mind.

Employee Allowed to Be Late for Years

Darrell Hartwell was a firefighter/EMT for the Navy since 1998. During his tenure, Hartwell had trouble getting to work on time. Until 2011, though, he rarely received more than verbal reprimands for his persistent lateness.

Under a 2008 agreement with the local union, Navy firefighters, including Hartwell, were allowed to informally exchange up to 59 minutes at the beginning or end of their shifts and without management’s prior approval. This meant that a firefighter who was running late could call and ask a coworker on the outgoing shift to cover for him. Hartwell frequently took advantage of this agreement and on most days, he was able to find someone to cover for him until he got to work.

Department Changes Led to Increased Write-Ups and Termination

Two changes happened in 2011 that led to Hartwell’s eventual termination. First, management said it would no longer allow these informal time swaps. Second, the new supervisor disciplined Hartwell more frequently and with increasing severity for his tardiness, including a 14-day suspension.

After his suspension, Hartwell told his supervisor that he had several mental health conditions for which he took medications that caused drowsiness that led to his tardiness. Hartwell requested an accommodation of being allowed to use up to an hour of sick leave on the mornings that he was late and to reinstate his ability to informally exchange time with others. Management denied Hartwell’s request and ultimately terminated him for tardiness.

Hartwell sued the Secretary of the Navy under the ADA claiming that his chronic lateness was the result of diagnosed medical conditions and that the fire department refused to implement a reasonable accommodation for his conditions by reinstating the 2008 agreement.

Punctuality Was Essential Function of Job – Request Was Not Reasonable

The court had to decide whether punctuality was an essential function of his job. If it was, then to be reasonable an accommodation needed to enable Hartwell to get to work on time. If he could not come on time, he was not a “qualified individual” under the ADA (because he would not be performing an essential function of the job). On the other hand, if punctuality was not an essential function, then an accommodation of allowing him to show up late might be reasonable.

The court found that punctuality was in fact an essential function of Hartwell’s job. If the required number of firefighters were not present, it was possible that the department could not appropriately respond in an emergency. Hartwell himself testified that “A firefighter can’t do his job if he’s not at work.” All in all, Hartwell’s requested accommodation – to continue to allow him to show up late – would not have allowed him to perform the essential function of punctuality and was therefore not reasonable.

Prior Accommodation Exceeding ADA Requirements Can Be Changed

The court also found that just because the department had provided the accommodation to Hartwell for many years did not mean it was reasonable or that it had to continue. Hartwell argued that his requested accommodation was reasonable given that the department had allowed him to arrive up to an hour late for several years without any issues. The court disagreed saying “prior accommodations do not make an accommodation reasonable.” In Hartwell’s case, it was not reasonable because punctuality was an essential job function.

So, What Does This All Mean?

Sometimes you may decide to give an employee an accommodation that goes above and beyond what the ADA requires. Perhaps you have a long-time, loyal employee who just needs a little more help to get back to work full-time so you provide an accommodation that is not required by the ADA. You can do that without worrying that you are stuck providing that unreasonable accommodation for the employee’s entire time at your company. You can change your mind later and stop providing an unreasonable accommodation. After all, the ADA doesn’t require you to provide unreasonable accommodations, it only requires that you provide reasonable ones.