ADA May Require Accommodation For Employee's Commuting Difficulties

(Published July 26, 2010)

 

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations in the workplace for employees with disabilities.  An employee's commute to and from work is outside the workplace, so the duty to accommodate doesn't apply.  However, a scheduling change that accommodates an employee's ability to get to work might not be out of the question.

 

Night Shift Issues

A part-time drugstore clerk, who generally worked either the 9 a.m. – 2 p.m. shift or the 5 p.m. – 9 p.m. shift, lost the vision in her left eye and could no longer safely drive at night due to depth perception problems.  As there was no public transportation in the area, she had no reliable way to get to and from work at night, so she requested to be assigned to the day shift only.  Her supervisor refused, saying it wouldn't be fair to the other employees.  The employee filed suit under the ADA.

 

The employer argued that it had no duty to accommodate or even consider accommodating the employee because her commute to and from work was not workplace-related and was therefore outside the scope of the ADA.  The district court agreed, stating that requiring the employer to accommodate this employee was basically making an employer "responsible for how an employee gets to work, which expands the employer's responsibility beyond the ADA's intentions."

 

On appeal, the 3rd Circuit Court disagreed: "[U]nder certain circumstances the ADA can obligate an employer to accommodate an employee's disability-related difficulties in getting to work, if reasonable.  One such circumstance is when the requested accommodation is a change to the workplace condition that is entirely within an employer's control and that would allow the employee to get to work and perform her job…. A change in shifts could be that kind of accommodation." 

 

The appeals court went on to emphasize that its decision in no way makes employers responsible for how employees get to work, pointing out that the employee in this case "did not ask for help in the method or means of her commute."  However, "[t]he scheduling of shifts is not done outside the workplace but inside the workplace."

 

Now it is up to a jury to decide whether a shift change was a reasonable accommodation under the circumstances.  (Colwell v. Rite Aid Corp., 3rd Cir., No. 08-4675, 2010)

 

Commuting Accommodation Keys

Don't dismiss out of hand a shift change request just because it would help an employee with commuting difficulties, rather than help an employee with an on-the-job difficulty.  "The ADA does not strictly limit the breadth of reasonable accommodations to address only those problems that an employee has in performing her work that arise once she arrives at the workplace," said the 3rd Circuit.

 

Modified work schedules, including shift changes, have long been considered a form of reasonable accommodation.  Rejecting a shift change request is easier to defend if you can prove the shift change would cause an undue hardship, rather than arguing on the technicality of whether the disability affects the employee's ability to commute or perform their job. 

 

A claim of undue hardship must be based on concrete evidence, rather than generalized conclusions.  The manager assumed that the other employees would object to a shift switch, without ever actually asking them.  And even if they had objected, it would be a mistake to assume the court would automatically accept co-worker complaints as an undue hardship and excuse the employer from its ADA obligations.  The court is more likely to consider the accommodation unreasonable if it unduly disrupts co-workers' ability to work, prevents them from doing their jobs, or otherwise significantly disrupts the employer's operations.

 

Regardless of whether the employee or the employer ultimately triumphs in this case, you should always make a genuine effort to engage in the interactive process and to be flexible and grant an accommodation request that is reasonable.  Your main motivation should be to do what's right, and not just what's required.

 

Related Topic(s): Discrimination/ADA - Americans With Disabilities Act