I have written before about flexible work schedules. See my prior posts here and here. Sometimes, a worker with a disability will need a flexible work schedule as an accommodation. Recently, the District of Columbia Court of Appeals has affirmed that yes, flexible work schedules can be a reasonable accommodation. In Solomon v. Vilsack, No. 12-5123, 2014 U.S.App. LEXIS 15671 (D.C. Cir. 8/15/2014), a female worker suffered from depression since the 1980’s. In 2003 and 2004, she sought and did use a flexible work schedule as an accommodation. She would arrive late for work and stay late on those days when her condition worsened. She provided medical documentation requesting that flexible work schedule.

But, in late 2004, the Agency told her she could no longer work flexible hours. Ms. Solomon’s condition intensified such that she could not return to work. She filed suit under the Rehabilitation Act, 29 U.S.C. §791(b), an act which applies ADA standards.

The district court initially granted summary judgment because the Plaintiff was receiving disability income benefits. On appeal, that summary judgment was overturned, because applications for SSDI are not inconsistent with the claim that a worker could work if she had the necessary accommodations.

On remand to the lower court, the district court granted summary judgment, again. This time, the lower court granted summary judgment on the grounds that working a certain schedule is a requirement for any job. The lower court found that her request for a flexible work schedule as an accommodation was unreasonable as a matter of law. This decision overturns that second summary judgment.

The Agency argued, and the lower court accepted, that working a regular and predictable schedule is an necessary element of any job. But, noted the D.C. Circuit, the ADA and the Rehabilitation Act expressly provide that re-structuring of a job or modified work schedules may serve as reasonable accommodations. Other courts have agreed. See McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013); Ward v. Massachusetts Health Research Ins., Inc., 209 F.3d 29, 34-35 (1st Cir. 2000); EEOC v. Ford Motor Co., 752 F.3d 634, 641 (6th Cir. 2014). Instead, the court should conduct a fact intensive inquiry regarding whether this particular job requires an employee to be present everyday at a certain time. Some jobs may require a set schedule, but other jobs do not.

The Agency argued that Ms. Solomon’s job involved shirt, tight deadlines. But, the Plaintiff responded that short deadlines were rare. Indeed, she argued that she had met every single deadline through 2004 by working a flexible work schedule. The lower court dismissed her claim surmising that was due more to luck than to her work habits. But, said the appellate court, the district court should not engage in surmising when deciding summary judgment. “Summary judgment cannot rest on such speculation about the evidence,” said the D.C. Circuit.

Not all jobs require daily attendance. And, not all jobs require set, certain schedules. In resolving requests for accommodations, the employers and the courts must get into the “weeds” of these decisions. See decision here.

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