Most requests for disability accommodation arise out of the impact of an employee’s medical condition on their ability to perform their job duties. But sometimes an employer is confronted with a disabled employee requesting accommodation due to the impact of their medical condition on their ability to commute to the workplace at which they will perform these job duties.
Post-pandemic, these accommodation requests are often requests to work from home, though they also can be a request for a schedule change or specialized parking location. Employers may initially recoil at such a request and quickly deny it as the commute is not part of the work environment.
However, given the EEOC’s position and developments in federal case law, employers would be wise not to skip the ADA accommodation analysis upon receipt of such a request. The following provides an overview of relevant case law on the topic with the goal of providing a roadmap for employers and their counsel presented with an accommodation request in this situation.
The EEOC in an Informal Guidance letter and several courts of appeal have held that because an employer’s duty is “to provide reasonable accommodations that eliminate barriers in the work environment, not ones that eliminate barriers outside of the work environment,” employers are not required to provide disabled employees with transportation to work.
“Employers usually bear no responsibility for helping an employee with a disability commute to and from work,” given that most challenges posed by the commute are within the employee’s sole power to eliminate, such as moving closer to the job site, deciding to use public transportation, ride-share or carpooling.
However, several federal courts of appeal and the EEOC have all held that it was possible that an employer may have to provide other accommodations to assist an employee’s commute unless it imposes an undue hardship.
One other reasonable accommodation that an employer may have to provide is a change in parking location or commuting assistance that allows the employee to commute to work and perform the essential functions of their position.
In one of the earliest case of this type, the Second Circuit held “[p]lainly there is nothing unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work” and “the question of whether it is reasonable to require an employer to provide parking spaces may well be susceptible to differing answers depending on, e.g., the employer’s geographic location and financial resources.”
In this case, a Manhattan Legal Aid attorney, who had suffered near fatal injuries in a car accident that limited her ability to stand for extended periods, ascend and descend stairs, walk long distances either at one time or during the course of the day, and generally decreased her physical stamina to significantly less than normal requested a nearby parking space in order to return to work, something that the employer provided to no other employees.
Similarly, the Eleventh Circuit Court of Appeals held that on-site parking in lieu of the assigned remote parking that required use of a shuttle was a possible reasonable accommodation for an employee with a degenerative disc disease and atrial paralysis in both feet. However, there have been decisions in the Tenth, Ninth, and Sixth Circuit Courts of Appeal holding that an employer had no obligation to provide accommodations to assist an employee with their commute.
Whether the employer may have to pay for commuting expenses as an accommodation also appears to be unsettled. In a case brought by a VA employee against the agency, the EEOC held that an employer is not required to pay the employee’s public transportation commuting costs as an accommodation. However, the Fifth Circuit has noted that whether the cost of “a taxi or van service” might constitute a reasonable accommodation was a fact issue for a jury to determine. Though, it concluded in a recent case, that offering a taxi or Uber as an alternative accommodation was not reasonable due to the significant cost it would impose on the employee.
Another form of reasonable accommodation that an employer should consider for an employee impacted in their ability to commute is a change in the employee’s work schedule. Recently, the Seventh Circuit held in EEOC v. Charter Communications, LLC,[10] that if an employee’s disability substantially interferes with his ability to travel to and from work,” and if the employer controls the employee’s work environment and is able to make a change that would enable the disabled employee to commute to work more safely, the employer may be required to make such a change if it does not impose an undue hardship.
The employee of Charter Communications requested an earlier work schedule to reduce nighttime driving for his long commute home from work due to the cataracts he had in both eyes that made his vision blurry and nighttime driving unsafe. In addition, in 2019, the Seventh Circuit granted summary judgment for an employer who had accommodated an employee whose hand injury made it difficult for her to grip the handrail in a crowded rush hour trains with an adjusted schedule that allowed her to avoid rush hour.
In contrast, the Tenth Circuit held that the employer of a legally blind employee who could do her job but was unable to get to work because she could not drive herself and public transportation and ride service were not available did not have to provide the employee with a flexible schedule to allow her to use family and friends for rides as an accommodation. The Court held that the requested accommodation was unreasonable because it would not have allowed her to perform the essential function of being physically present on a predictable schedule at her assigned jobsite.
Finally, an employer would be wise to consider whether it can change an employee’s work location in order to accommodate the employee either with a shorter commute to a different work location or with the elimination of the commute by allowing the employee to work from home. This may require an exemption from the employer’s in-office or hybrid office policies as an accommodation.
The EEOC made its position on this subject clear in its 2002 “Enforcement Guidance on Reasonable Accommodation and Undue Hardship, No. 915.002 (10/17/02) stating an employer “must modify its policy concerning where work is performed” to allow an employee to work at home if this accommodation is effective and would not cause an undue hardship.
And in the EEOC’s Interpretive Guidance for the recent Pregnant Workers Fairness Act regulations, the EEOC stated that an employer confronted with an accommodation request by a pregnant employee requesting remote work to avoid the difficulty of commuting due to the nausea and vomiting in her first trimester of pregnancy must grant the accommodation of remote work when the employee is able to perform the essential functions of the job remotely and it does not impose undue hardship.
The federal courts have agreed with this position of the EEOC in some instances but not in others. The Second Circuit overturned a district court’s dismissal of a case brought by an disabled employee requesting accommodation regarding her commute to work noting that “the district court should have considered whether [the employer] could have reasonably accommodated [the employee] by transferring her … to … another closer location, allowing her to work from home, or providing a car or parking permit.”
The Sixth Circuit concluded that work from home was a possible accommodation for a lawyer restricted from engaging in prolonged standing or sitting and from lifting heavy objects due to pregnancy complications where physical presence was not deemed an essential function of her job. And more recently, the Fifth Circuit held that a jury could find it reasonable for the U.S. Postal Service to accommodate an employee unable to commute to work each day until the afternoon due to a nerve condition that flared up in the morning.
However, in instances where the change in the work location or remote work would not allow the employee to perform the essential functions of their position, courts have not required accommodations of a disabled employee whose condition impacts their ability to commute. If an employee is requesting an accommodation that removes an “essential function of the position[, it] is per se unreasonable.”
The Sixth Circuit recently addressed this issue in a case involving a clinical pharmacist’s request to work from home. The pharmacist’s medical condition impacted his ability to walk into work from his car and to drive the one-hour trip to and from work, making him susceptible to tripping and muscle exhaustion while at work. After analyzing the pharmacist’s job duties, the court held that physical presence at the employer’s medical center was an essential function and accordingly remote work was not a reasonable accommodation.
Before ending the accommodation analysis in the situation where accommodating a commute would result in a change to the employee’s essential functions, employers should first consider whether it can provide a temporary period of leave or remote work that would allow the employee time for recovery or to make changes in their living or commuting arrangement that would allow the employee to perform the essential functions in the near future. Both the courts and the EEOC have consistently taken the position that providing an accommodation on a temporary basis does not require the employer to provide the accommodation permanently.
In light of these cases, employers should not immediately refuse an employee requesting accommodation arising out of the impact of their condition on their ability to commute to work, and instead should proceed with the interactive process. A change in the employee’s parking location, work schedule, or work location including remote work, may be a reasonable accommodation that allows the employee to return to work.
For more information you can reach Julie at jareddig@lerchearly.com.