Entitled or disabled?

Did you see the latest viral TikTok, in which the TikToker complains that she was disrespected by a potential employer during an interview when she inquired about available accommodations for "time blindness" - a term apparently intended to describe her difficulty being on time? As of the writing of this blog, nearly 27,000 comments have been posted in response to this TikTok, the vast majority being rather critical of the poster, many suggesting the "accommodation" needed is an alarm clock or a greater sense of personal responsibility.

On the surface, it would be easy to dismiss this TikTok and move on. But is there an actual employment law issue here? Could "chaotic_philosopher" actually be entitled to a workplace accommodation for her apparent inability to be punctual?

The Americans with Disabilities Act (ADA) requires that employers provide reasonable accommodations to qualified individuals with a disability to enable them to perform their essential job functions. The underlined terms are important, so let's look at each of them.

• A "qualified individual" for purposes of the ADA is an employee or applicant who meets the requirements for, and is able to perform the essential functions of, the position they hold or seek, either with or without a reasonable accommodation.
• "Essential job functions" are those duties and responsibilities that are fundamental to the position, and which cannot be modified without altering the nature of the job.
• A "disability" is a physical or mental impairment that substantially limits an individual in a major life activity.
• A "reasonable accommodation" is an adjustment to the job which enables a qualified individual with a disability to perform the job's essential functions but does not impose an undue hardship on the employer.

These terms now defined, the questions the TikTok raises are: (1) whether "chaotic_philosopher" was qualified for and could perform the essential functions of the position she was seeking; (2) whether she is disabled; and (3) whether the employer could provide a reasonable accommodation for any such disability.

We don't know what position she was applying for, or what the essential functions of that position may be, but let's assume she could establish that she was a "qualified individual" for the position.

The next question is whether her claimed "time blindness" - presumably, a persistent pattern of being late - is a disability.

Some mental health conditions, such as Attention Deficit/Hyperactivity Disorder (ADHD), can cause individuals to lose focus, which could cause tardiness. Physical conditions also could be at issue here - what if she suffers from narcolepsy or sleep apnea, which cause her to be drowsy and sometimes fall asleep at unintended times, resulting in her chronic lateness? Or if she is on medication for a lifelong medical condition that causes drowsiness? The point here is that it would be easy to label the TikTok-er as a stereotypically entitled Gen Z, simply looking for a free pass to be late for work while she leisurely starts her day enjoying a matcha oat milk latte and avocado toast. But that would be a mistake.

To be sure, if what we're talking about here is someone who simply is unable to be on time because she procrastinates, is disorganized, or just doesn't take enough personal responsibility to be on time, that would not constitute a disability and therefore would not implicate any accommodation requirements under the ADA. But if her tardiness is the consequence of an actual disability, an accommodation may be required.

Employers generally cannot ask an applicant whether they have a disability but can ask an applicant if they are able to perform the essential functions of the job, with or without an accommodation. If the applicant says she generally can but cannot commit to being on time, an employer may ask why. If she responds, or otherwise volunteers, that the reason for her problems with punctuality are disability-related, then that raises the issue of what a "reasonable" accommodation would be for her disability? Employers generally have the right to require that their employees report to work on time. Chronically late-arriving employees can, among other things, wreak havoc on work schedules and customer service, cause resentment on the part of employees who must cover for the tardy employee, and impose additional payroll expense to employers forced to pay overtime to other employees who pick up the slack from the late-arriving employee. However, where absolute promptness may not be an essential function of a job, an accommodation for a person with a disability impacting their punctuality, such as allowing them to report to work within a 15-minute window as opposed to a specific set time, may not impose an undue hardship on the employer.

The point here is that even in the most seemingly absurd situations - as here, where the applicant appears to be asking for permission to be regularly late to work - there may be legitimate issues that require appropriate consideration under applicable law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Daniel B. Pasternak, Squire Patton Boggs LLP, San Francisco CA, (c) Mondaq Ltd.

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