By Bruce R. Millman
Most employers would be shocked to learn that they may have a legal obligation to help employees get to work. Yet a recent trend in federal appellate court cases suggests just that.
Last August, the U.S. Court of Appeals for the Second Circuit in New York reiterated that employers may be obligated under the Americans with Disabilities Act (ADA) to accommodate requests by a disabled employee for assistance with her commute to work.
The plaintiff in Nixon-Tinkelman v. N.Y. City Dept of Health & Mental Hygiene was hearing impaired and suffered from cancer, heart problems and asthma. When she was reassigned to work for nine months in Manhattan, rather than in Queens, she requested assistance with the longer and more difficult commute to work.
The district court granted summary judgment to her employer, the Department of Health and Mental Hygiene (DOHMH), finding that:
“Commuting falls outside the scope of the plaintiff’s job, and is thereby not within the province of an employer’s obligations under the ADA and Rehabilitation Act.” The appellate court reversed, stating that “there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.”
Noting that the plaintiff had “worked for many years in a more suitable location,” the Second Circuit instructed the district court to analyze whether it would have been reasonable for DOHMH to “provide assistance related to [the plaintiff’s] ability to get to work.” The court listed several examples of accommodations that “should have [been] considered” by the lower court (and, by implication, the employer): transferring the plaintiff back to Queens or another closer location; allowing the plaintiff to work from home; or providing the plaintiff with a car or parking permit.
The Second Circuit also suggested a non-exclusive list of factors for evaluating the reasonableness of the possible accommodations, such as the number of employees employed by DOHMH, the number and location of its offices, whether other positions were available for which plaintiff was qualified, whether the plaintiff could have been shifted to a more convenient office without unduly burdening DOHMH, and whether it would be reasonable for the plaintiff to work without on-site supervision.
The current trend among circuit courts
While several circuit courts have held that commuting falls outside the scope of employers’ obligations under the ADA, the Nixon-Tinkelman case marks the latest and perhaps most far-reaching foray by a federal appeals court suggesting otherwise: in some cases, it may in fact be reasonable for an employer to accommodate commute-related requests – especially if changes in shifts or assignments are at issue.
In 2010, the Third U.S. Circuit in Philadelphia ruled in favor of a drugstore cashier who requested that she only be scheduled for day shifts because her vision impairment prevented her from driving at night, (Colwell v. Rite Aid Corp.). However, unlike the Second Circuit, the Third Circuit took care to distinguish its holding from one that “makes employers responsible for how an employee gets to work.”
In Livingston v. Fred Meyer Stores, Inc. (2010), the Ninth U.S. Circuit in San Francisco also ruled in favor of a vision impaired employee who requested assignment to a day shift. The Ninth Circuit, like the Second Circuit, noted it had also previously “recognized that an employer has a duty to accommodate an employee’s limitations in getting to and from work.” However, it did not suggest examples of accommodations for the district court to consider on remand – because it concluded from the evidence already before it that the accommodation requested by the plaintiff was in fact reasonable.
In an early First Circuit case, Jacques v. Clean-Up Group, Inc. (1996), plaintiff’s epilepsy prevented him from driving. After he was laid off from work, his employer offered him another, more distant, job requiring an 8 a.m. start.
Due to his difficulty commuting, he sought an accommodation – either a later start, or that his employer provide him transportation. Neither the district court nor the Boston-based court of appeals even questioned whether the employee’s commute had to be accommodated. The employer prevailed, however. The later start was not a reasonable accommodation because the 8 a.m. start was ruled an essential job function, and employer-provided transportation imposed an undue hardship.
What it means for employers
Employers should be aware that the ADA may obligate them to accommodate certain requests by employees for assistance with their commute to work. Whether an accommodation is reasonable and may be required will vary with the individual circumstances of each request.
Dismissal of failure-to-accommodate claims flowing from commute-related requests is not guaranteed in the First, Second, Third or Ninth Circuits, especially without a sufficient evidentiary record on the reasonableness of the accommodation(s) requested and the hardship imposed on the employer. Further, state or local laws may impose more exacting duties on an employer.
While the Nixon-Tinkelman and Livingston decisions offer some guidance on what circumstances courts consider reasonable (or unreasonable) for employers to accommodate commute-related requests, employers should be aware that their obligation to engage in the interactive process under the ADA may be triggered as soon as these requests arise – especially if these requests are precipitated by employer decisions that affect an employee’s commute.
Employers should consult with legal counsel to assess the extent of their legal obligations when confronted with requests by employees with disabilities to accommodate their work commutes.