March 2024 Newsletter

Two Hour Delayed Start Time Not a Reasonable Accommodation

Smithson v. Austin, 7th Cir., No. 22–2566 (Nov. 20, 2023).

The plaintiff worked as a science teacher since 2004. She suffers from a number of medical conditions, including migraines, intracranial hypertension, affective disorder, vertigo and attention-deficit/hyperactivity disorder. These conditions, together with medication that she takes to control them, adversely effects her major life activities. Smithson has problems with balance; experiences difficulty walking and driving; has breathing problems; and experiences impaired vision, speech and memory.

Plaintiff began requesting accommodations in 2010 to deal with these conditions. Those accommodations included an occasional flexible start time, such as arriving 15 minutes late. Her employer agreed to these conditions. Plaintiff continued to request accommodations over the years, with most accommodations being granted by her employer. For example, she asked that her first period be her planning period.

In 2016, a new principal was hired and in 2017, the school made changes to the master schedule and assigned the plaintiff to teach five sections of the same subject each day.

In 2018, the plaintiff requested software that would allow her to monitor students remotely. To support this request, plaintiff submitted a doctor’s letter stating that she required a flexible duty reporting time that included as much as a two-hour delay in starting per day. This request was granted to allow her to take sick leave of up to two hours when needed, barring any undue hardship to the school schedule. The plaintiff then sent an email indicating that she would be late every day. The principal was concerned that she would never be able to arrive at the school by 8 a.m. because of her medical conditions. He explained to her that it was essential for her, as a science teacher, to perform her duties during established times of the school day when she was on duty.

The COVID-19 pandemic resolved the situation acceptably to both the educational association and the plaintiff. The employer had a great need for virtual instruction because of the pandemic, and the plaintiff was hired to work from home full time as a teacher for the DODEA virtual school in August 2020. She continued to work in this capacity up to the time the appeal briefs were filed. Nevertheless, plaintiff filed a lawsuit claiming her employer violated the Rehabilitation Act for its refusal to grant her a two-hour delayed start time every day. The district court granted summary judgment to the employer, and the plaintiff appealed to the 7th U.S. Circuit Court of Appeals.

On appeal, the 7th Circuit considered the case law in effect prior to the pandemic as to whether the plaintiff’s request was reasonable. This case law stated that employers are free to set the required start times of employment and to require in-person attendance, and that both were essential functions of the position. Because the plaintiff wanted to change an essential function of her position, her request was not reasonable under the Rehabilitation Act.

Therefore, the 7th Circuit upheld the district court’s grant of summary judgment.

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