Getting there: Must employers accommodate an employee’s work commute?
Dateline: August 2023
Location: 7th Circuit Court of Appeals (IL, IN, WI)
An employee’s disability made it difficult to commute safely to work, according to court documents from a recent case. The main question was whether the employer had to provide a modified work schedule as an accommodation to make the commute safer. The court concluded that the answer is “maybe,” but provided some insight.
The story
James worked in a call center from noon to 9:00 p.m. Cataracts in both eyes made his vision blurry and made seeing in the dark difficult, thus making nighttime driving unsafe. Public transportation was not an option with his schedule.
James asked for an earlier work schedule (10:00 a.m. to 7:00 p.m.) to reduce his nighttime driving, particularly to be off the highway before dark. The employer granted his first request for this change, but only for 30 days. They denied his second request in which he asked to extend the alternative schedule so he could search for a home closer to work.
Unhappy with the situation, James filed a charge with the Equal Employment Opportunity Commission (EEOC), which subsequently filed a suit on James’ behalf arguing that the employer unlawfully failed to accommodate James’ disability. For unrelated reasons, James’ employment ended five months later.
The district court ruled in favor of the employer, holding that the employer had no obligation to accommodate James’ commute because his disability did not affect his ability to perform any essential function of his job once he arrived at the workplace.
The EEOC appealed to the 7th Circuit.
The plot thickens
Other circuit courts have found that employers might need to consider and allow a schedule change for employees with disabilities to make the commute from (or to) work safer. In James’ case, the 7th Circuit did not specifically say that employers never have a duty of reasonable accommodation under the Americans with Disabilities Act (ADA) regarding how its employees with disabilities get to work.
In this particular case, a second 30-day change to James’ work schedule was not, at least as a matter of law, unreasonable given his circumstances and his job with this particular employer. His vision impairment interfered with commuting to work safely, and attendance was an essential function of his job.
Summary
Employers have control over workplace conditions that allow employees to get to work and perform their jobs, such as a schedule change. James was not asking for help with the method or means of his commute, but a change in schedule that was within the employer’s control.
Whether an employee with a disability can show that commuting requires a workplace accommodation will depend on many facts, including:
- The benefits of the accommodation,
- Alternatives to the accommodation,
- The cost to the employer, and
- Consequences for others (e.g., coworkers and customers).
Employers will rarely need to address an employee’s commuting problem if the employee chose to live far from the workplace or failed to take advantage of other available reasonable options, like public transportation.
Key to remember: Getting to and from work is, in most cases, an employee’s responsibility, not an employer’s. But if a qualified employee’s disability interferes with the ability to get to work, the employer might need to provide an alternative work schedule as an 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.