Written by Fiona W. Ong from Shawe Rosenthal LLP on April 3, 2024
According to some courts, no. According to the Equal Employment Opportunity Commission and other courts, yes. And the EEOC is being the squeaky wheel regarding its position, as evidenced by a recent settlement announcement.
As you may know, under the Americans with Disabilities Act, absent an undue hardship, employers must provide reasonable accommodations to employees with disabilities in order to enable them to perform their essential job functions or to enjoy equal privileges and benefits of employment as non-disabled employees.
The employee in this case couldn’t drive at night because of cataracts and night blindness. Public transportation was not an option and Uber was just too darned expensive. Because his shift ended at 9:00 pm, he asked to be moved to an earlier shift. The employer agreed to do so for a month. The employee then asked for an extension of the shift change and, although the employer’s policies permitted schedule changes, the employer refused. According to the EEOC, the employer told the employee that “assistance with your commute” is “not required under the ADA.”
The EEOC decided to go hell for leather and sued the employer for failing to provide reasonable accommodations. The federal district court granted summary judgment for the employer, agreeing that the employee’s disability did not prevent him from doing any essential functions of his job once he got to work. But the employer’s joy ride was cut short on appeal.
The U.S. Court of Appeals for the Seventh Circuit pulled a U-turn, reversing the district court’s ruling for the employer. The Seventh Circuit refused to adopt a “bright-line” rule that employers have no reasonable accommodation obligation to get an employee to work. Nor that employers always have that obligation. Rather, it took a middle-of-the-road approach, stating:
We have no doubt that getting to and from work is in most cases the responsibility of an employee, not the employer. But if a qualified employee’s disability interferes with his ability to get to work, the employee may be entitled to a work-schedule accommodation if commuting to work is a prerequisite to an essential job function, such as attendance in the workplace, and if the accommodation is reasonable under all the circumstances.
The Seventh Circuit kicked the case back down to the federal district court for further proceedings consistent with its opinion. But seeing the end of the road, the employer decided it would be best to settle the case, leading the EEOC to honk its own horn in the press release linked above.
Now, not all the federal courts are driving in the same direction. As we discussed in our April 2021 E-Update, the Tenth, Sixth and Ninth Circuits would not require reasonable accommodation for an employee’s commute, while the Second and Third Circuits (in addition to now the Seventh) have reached the opposite conclusion. And, of course, the EEOC is the driving force behind this particular position. Thus, employers should be prepared to shift gears when dealing with a commuting accommodation request, depending on the jurisdiction in question!
