Two-Hour Delayed Start Time Not Reasonable Accommodation

Takeaway: The COVID-19 pandemic has caused courts to reconsider the need for in-person attendance in all positions; nevertheless, timely attendance may still be an essential function of a teaching position.

A two-hour delayed start time wasn’t a reasonable accommodation for a teacher, the 7th U.S. Circuit Court of Appeals decided.

The plaintiff worked for the Department of Defense Education Activity (DODEA), which operates 160 schools across the globe to educate the children of military families. The plaintiff worked as a science teacher for DODEA since 2004. She is licensed to teach biology, chemistry and general science.

The plaintiff has 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, have adverse effects on her major life activities. She has problems with balance; experiences difficulty walking and driving; has breathing problems; and experiences impaired vision, speech and memory.

In 2010, the plaintiff first asked her employer for accommodations to address her many challenges. Specifically, she requested a flexible start time, giving as an example that she might arrive 15 minutes late on a day she was having a migraine and make up that time at the end of the day. She also requested permission to be seated during part of the teaching day. She told the principal that a delayed start time will not occur frequently, and her employer agreed to these accommodations.

In 2014, the plaintiff submitted a request for additional accommodations. This time, she asked for various forms of protection from emotional disturbances relating to her position and to keep the first period of the day as her planning period. It was unclear how this request was resolved, but it appeared that the plaintiff was able to perform her job to DODEA’s satisfaction that year. The next year, the plaintiff made additional accommodation requests. The principal largely granted her requests.

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

In 2018, the plaintiff requested an additional accommodation—certain software to monitor students remotely. As part of her request, the 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.

The principal largely granted her requests, often with the caveat that each accommodation would not impose an undue hardship on the employer. With regard to her request for a two-hour delayed start time, 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 DODEA and the plaintiff. The DODEA suddenly 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, she filed a lawsuit against DODEA, claiming it 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 DODEA, 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.

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

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.