One of your employees has a disability that prevents her from getting to work consistently. The problem is that regular attendance is an essential function of the job. So, remote work isn’t an option.
Do you need to provide her transportation as a reasonable accommodation under the Americans with Disabilities Act?
Over the weekend, when I wasn’t at kids’ flag football and soccer games — ain’t the life of the BloggerKing fabulous? — I read this Tenth Circuit opinion.
The plaintiff became legally blind and could no longer drive herself to work, a 120-mile round trip. She asked her employer to allow her to work a flexible schedule dependent on her ability to secure rides. The employer permitted this arrangement for a while, but it became a problem because the plaintiff’s physical presence at work was unpredictable. The flexible schedule arrangement ended, was never reinstated, and the plaintiff alleged an ADA violation.
Sure, the ADA requires employers to accommodate disabled employees reasonably. But, is providing a ride to work a reasonable accommodation here? If you’re thinking, yes, consider this:
Consider a non-disabled employee in the same position as the plaintiff. He lives 60 miles from work. Although he previously drove himself to work, his car broke down, so he can no longer be physically present at work on a set and predictable schedule. Surely, the employer need not permit this employee to work a flexible schedule just because he can no longer get to work the way he used to.
So, why would it be any different for someone with a disability? Indeed, the court highlighted that “whether a transportation barrier is caused by a broken car or legal blindness and unreliable rides, the analysis of an employer’s obligations should not change if transportation is unrelated to an essential job function and not a privilege of employment.”
So, there is no duty to accommodate, and the employer wins.
The Employer Handbook Zoom Office Hour
On April 9, Meyling “Mey” Ly Ortiz, Managing Counsel of Employment & Labor at Toyota Motor North America, joined me to address the rise in discrimination against the Asian American and Pacific Islander community and the power of the mentor/mentee relationship during this pandemic. If you missed it, we’ve got your back. You can view the replay here at The Employer Handbook YouTube Channel.
On Friday, April 23, from 12-1 PM ET, by popular demand, it’s Beverages and Benefits, where my partners Mark Mathis, Bob Ellerbrock, and Amy Epstein Gluck will take a deep dive into the new U.S. Department of Labor guidance and model notices to support the new COBRA premium subsidy under the American Rescue Plan Act of 2021. You can register for that here.