While many district courts have found that commuting to work falls outside of the realm of an employer’s obligation to provide reasonable accommodations for disabled employees, some courts have opted to expand upon the ADA by ruling otherwise.
Close to home, trouble driving
In Colwell v. Rite Aid Corp (602 F.3d 495, 3rd Cir., 2010), the 3rd Circuit Court of Appeals considered whether a request for a shift change was a reasonable accommodation for an employee who cannot drive at night, due to vision problems.
Ruling in the employee’s favor, the court held that “the ADA contemplates” that it may be necessary for an employer to make a “reasonable” shift change in order to accommodate a disabled employee’s “disability-related difficulties in getting to work.” One such example would be when the accommodation requested is a “change to a workplace condition that is entirely within an employer’s control and . . . would allow the employee to get to work.”
The court pointed out, however, that an employer must have enough information to know that the employee is disabled and wants an accommodation, or at least there is enough evidence of a commuting problem that a “reasonable employer” would ask if accommodations were necessary.
This ruling is important for New Jersey employers, since the 3rd Circuit covers New Jersey and its holdings are binding unless overturned by the U.S. Supreme Court.
Late, but doing a great job
On the other side of the country, the 9th Circuit addressed commuting accommodations in Livingston v. Fred Meyer Stores, Inc. (388 F. App’x 738, 9th Cir., 2010).
In that case, the plaintiff also suffered a vision impairment that prevented her from walking or driving after dark. The employer denied her request for a “modified schedule during the fall and winter months so that she could minimize driving after dark.” When the employee refused to work her scheduled shift, she was fired.
The court ruled in the employee’s favor.
In reaching that decision, the court cited a 2001 case, Humphrey v. Memorial Hospitals (239 F.3d 1128, 1135, 9th Cir., 2001), involving an employee whose obsessive-compulsive disorder made it hard to get to work on time but did not otherwise affect her job performance. The court ruled that the employer had a duty to accommodate that worker, noting that “[e]mployers are not relieved of their duty to accommodate when employees are already able to perform the essential functions of the job.”
Help when office relocates
In 2011, the 2nd Circuit Court of Appeals—which covers New York and parts of New England—reaffirmed an earlier ruling in Nixon-Tinkelman v. N.Y. City Dept. of Health & Mental Hygiene (No. 10-cv-3317, 2nd Cir., 2011).
The plaintiff suffered from cancer, heart problems, hearing impairments and asthma. She contended that she should have been supplied with a special telephone or device for the hearing impaired. Additionally, when her employer moved her job from Queens to Manhattan, she requested commuting accommodations.
The court did not require additional accommodation in the form of a special telephone device—because when the plaintiff asked for one, she was given approval to buy one and was then reimbursed.
However, the court did rule that the employer had an obligation to accommodate her commuting difficulties. “In certain circumstances, an employer may have an obligation to assist in an employee’s commute,” provided that the employee is otherwise qualified,” the court said.
Holding in the plaintiff’s favor, the court remanded the case for the district court to reconsider whether it would have been reasonable to provide assistance to the plaintiff, given that she had worked for many years in a “more suitable location.”
Accommodate or not? 5 factors
In Nixon-Tinkelman, the court set forth five factors that employers should consider when evaluating requests for commuting accommodations:
- The number of employees in the company
- The number and location of its offices
- Whether other available positions existed for which the plaintiff was qualified
- Whether the employee can be moved to a more convenient office without burdening the employer’s operations
- The reasonableness of allowing her to work without on-site supervision.
Before you deny accommodation
Before denying an employee’s request for commuting accommodations, understand that the trend in disability discrimination law increasingly seeks to expand the rights of disabled people. With that in mind, sometimes a simple, reasonable accommodation will avoid costly litigation.
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