Being at work is an essential job function

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Being at work is an essential job function
Dickinson v New York State Unified Ct. Sys, 2012 NY Slip Op 06895,Appellate Division, First Department
The Appellate Division unanimously confirmed the termination of an employeefound guilty of “certain disciplinary charges” that alleged both misconduct andincompetency due to excessive absenteeism and lateness.
Although the court agreed with the former employee thatmisconduct "requir[es] a showing of willfulness or intentionalmisconduct," it explained that "a finding of incompetence ... onlyrequires evidence of some dereliction or neglect of duty."
There was, said the court, substantial evidence supporting the employer's determination and the employer was not required to warn theindividual that his absences and tardiness could lead to dismissalnotwithstanding the individual’s argument to the contrary.
The Appellate Division also ruled that the employer had notviolated due process by relying on evidence of absences and tardiness outsidethe time period delineated in the specification of charges as such evidence was only considered in determining the appropriate sanction to be imposed and not to determineindividual's guilt.
As to the penalty imposed, termination, the court said thatit did not shock its sense of fairness as “[b]eing present at work is anessential job function” and an employee’s "disability ... may not be usedto shield him from the adverse consequences of inadequate jobperformance."
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06895.htm