by Lana L. Rupprecht, Esq. - Director Product Compliance
August 25, 2023
Most employers understand they have an obligation to provide reasonable accommodations to disabled employees, absent undue hardship. But what if the employee needs an accommodation to get to and from work? Isn't that the employee's, and not the employer's, responsibility?
The recent case, Equal Employment Opportunity Commission v. Charter Communications, LLC, (7th Cir. July 28, 2023), analyzes this issue in detail. In doing so, Charter discusses the Americans with Disabilities Act (ADA), its legislative history and court decisions addressing this issue.
Key points from the Charter case are illustrated in the Questions below.
Which of the following is a true statement?
- The ADA never requires an employer to offer a modified work schedule when the purpose of doing so is to accommodate an employee's disability-related difficulties in commuting to and from work; getting to work is the employee's responsibility.
- The legislative history of the ADA does not identify modified work schedules as a possible accommodation.
- There is no bright-line rule stating that an employer never has a duty of reasonable accommodation under the ADA regarding how its employees with disabilities get to work.
C. This is directly from the Charter decision.
A is incorrect. In Charter, the court specifically held that although getting to and from work is normally an employee's responsibility, an employee who has a disability that interferes with his ability to get to work may be entitled to a work-schedule accommodation if commuting to work is a prerequisite to an essential job function and if the accommodation is reasonable.
B is incorrect. Modified work schedules as an accommodation appear throughout the ADA's legislative history.
The report of the House Committee on Education and Labor explained that reasonable accommodations could include "modified work schedules" to accommodate some people with disabilities who are "denied employment opportunities because they cannot work a standard schedule." H.R. Rep. No. 101-485, pt. 2, at 62–63 (1990), as reprinted in 1990 U.S.C.C.A.N. 303, 335–36. The House Report added: "Other persons who may require modified work schedules are persons who depend on a public transportation system that is not currently fully accessible." Id. The report also said that an accommodation could extend to helping an employee get to work, noting that a qualified person with a disability seeking employment at a store that is "located in an inaccessible mall" would be entitled to reasonable accommodation in helping him "get to the job site." H.R. Rep. No. 101-485, pt. 2, at 61, as reprinted in 1990 U.S.C.C.A.N. at 334. The report of the Senate Committee on Labor and Human Resources also endorsed modified work schedules as potentially reasonable accommodation and noted that "modified work schedules can be a no-cost way of accommodation." S. Rep. No. 101-116 at 31 (1989).
Your employee works in retail. She develops a condition limiting her ability to walk more than one city block. She requests an accommodation that would shorten her walk through a large retail store and avoid the need to take a long walk to the mall food court for lunch breaks.
True or False: The employer has no obligation to accommodate the employee in this situation.
False. In EEOC v. Sears, Roebuck & Co. (7th Cir. 2005), the court found the employee was "able to perform all of the aspects of her job but simply had trouble getting to and from her work-station within the store."
Your employee is an attorney who was severely injured in a traffic accident. After years of surgery and therapy, she is able to return to work but can only walk short distances with great difficulty. She asks her employer to accommodate her disability by paying for a parking space near her office and the courts where she could practice.
True or False: The employer has no obligation to provide parking or commuting help if it does not do so for any other employee.
False. In Lyons v. Legal Aid Society (2d Cir. 1995) the employer tried to make this argument and the court disagreed stating that "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 and … the determination of the reasonableness of such a requirement will normally require some development of a factual record.
Your employee is a retail clerk at a pharmacy working daytime and evening shifts. She loses vision in one eye making it difficult for her to drive to work at night. Public transit is unavailable, and the employee asks to be assigned only daytime shifts as an accommodation.
True or False: The employer does not need to accommodate this request because the employee does not need accommodation to do her work once she arrives at the workplace.
False. The court in Colwell v. Rite Aid Corp. (3d Cir. 2010) rejected "a sharp line between on-site accommodations and transportation accommodations" stating "As a cashier, Colwell was certainly required to be at work to perform any of the functions of her job, and any change in shifts is clearly a change in a workplace condition entirely under the employer's control." As the Charter court recognized, "the employee was not asking for help 'in the method or means of her commute,' but only a change in schedule that was within the employer's control."
Your employee has narcolepsy. For years, the employee was able to commute to work until: she moved 79 miles away from her job; and the schedule for her entire department changed so that the commute was during heavy traffic. As a result, the employee asks for a schedule modification so that she may commute at an earlier time in the day outside of heavy traffic. The employee explains that the heavy traffic causes her commute to take longer so as a result, she needs to pull the car over and sleep.
True or False: Accommodation is required in this instance because the employee is asking just to return to her prior work schedule.
False. In this case, Regan v. Faurecia Automotive Seating, Inc. (6th Cir. 2012) the court affirmed summary judgment for the employer and found that the ADA "does not require [the employer] to accommodate Regan's request for a commute during more convenient hours."
Your employee of 20 years is a dietitian who develops an eye disease rendering her legally blind. Once she is at work, she can perform her job with magnifying equipment, but she cannot drive herself and public transportation and ride services are not available. The employee asks for accommodation in the form of a flexible schedule. You, her employer, grant this accommodation and try it out for 15 months. However, the trial period fails because the employee's schedule is erratic and unreliable.
True or False: You may not have an obligation to further accommodate the employee under this factual scenario.
True. In Unrein v. PHC-Fort Morgan, Inc.(10th Cir. 2021), the court affirmed summary judgment for the employer holding that the ADA did not require employers to allow an unpredictably flexible schedule depending on an employee's ability to obtain rides.
Your employee works in a call center. He suffers from cataracts which makes night driving difficult. As a result, he asks for an earlier work schedule (currently he was scheduled from noon to 9 p.m. and he requested that he start at 10 a.m. and work until 7 p.m.) to minimize driving at night. Initially, you permit this for a 30-day trial period but decide to deny it going forward, because you do not feel you are obligated to accommodate this under the ADA.
True or False: You clearly have no further obligation to accommodate this employee because you already tried for 30 days, and commuting time is not protected by the ADA.
False. This was the fact scenario in Charter. According to the court, the answer is not clear, and this situation needs to be analyzed by a jury on a case-by-case basis.
As you can see, the courts have varying opinions on this issue. What should an employer do? Here are some important takeaways for employers as result of this recent and important decision:
- Always engage in the interactive process and consult with your attorney before denying any accommodation request.
- Do not dismiss employee accommodation requests, even if you think they are not covered by the ADA. As you can see, the courts are not consistent in their decisions, and it is better to consider the request and discuss with the employee rather than deny without further analysis.
- Start with a trial accommodation, and continue to follow up with the employee to determine a long term effective solution and document that you did so.
- Consider alternatives but equally effective accommodations and document those as well.
Reliance Matrix can help!
Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services including accommodation solutions including disability, religious and pregnancy accommodations. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager.