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Posted on Thursday, October 02, 2014

Depressed Employee Wants Irregular Work Hours

A budget analyst for the Department of Agriculture with a long history of severe depression asked the agency for permission to work irregular hours each day depending on how she was feeling on a given day.  On some days, the depressed employee woke up too sick to work until the afternoon, when her condition would improve and she could get her work done; on other days, she was able to work in the morning but then had to stop in the afternoon when her depression got too bad.  Although she missed a lot of time at work due to her illness, the employee always completed her assignments on time and there were no complaints about her work product.  Even so, the agency insisted that she be at work during regular hours like her colleagues, and they denied her request for an irregular schedule.The employee sued for disability discrimination, arguing that as long as she got her work done, it should not matter when during the day she did her work.  The agency countered that it should be able to insist that its employees be at work during normal set hours each day.

The employee’s position prevailed.  The federal appellate court for the District of Columbia recently ruled that an irregular schedule, such as the one sought by the budget analyst in this case, can be an appropriate accommodation under federal disability law.  The appeals court rejected the agency’s argument that irregular work schedules pose a per se unreasonable burden on employers.  Rather, there must be a fact-specific inquiry done on a case-by-case basis to see whether an irregular work schedule will work in a particular workplace for both the employer and disabled employee.  The appeals court noted that technological advances and the expansion of teleworking have already contributed to a more flexible work schedule for many employees.

Most companies want the discretion to set regular work hours for their employees, and this decision still allows them to do so as long as companies can show that a predictable work schedule is essential to the job an employee is doing.  In other words, companies need to be able to explain why it is critical for all employees, even disabled ones, to work during set hours.  Some reasons might include fostering workplace discussions or ensuring that employees are responding to client communications in a reliable and timely manner.  Such reasons should be conveyed to any employee who is seeking a deviation from his or her normal work schedule.

Declan Leonard is a Managing Partner of Washington, DC area business law firm Berenzweig Leonard, LLP. Declan can be reached at DLeonard@BerenzweigLaw.com.

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