Might you need to modify work schedules for disabled employees to make their commute safer?


A little over five years ago, the U.S. Equal Employment Opportunity Commission sued an employer for disability discrimination. It claimed that the company, which temporarily granted a request to allow an employee with night blindness to work an earlier shift to avoid an evening commute, should have agreed to extend the accommodation. Its failure to do so violated the Americans with Disabilities Act, the EEOC alleged.

The district court granted the employer’s motion for summary judgment. It concluded that the employer had no obligation to accommodate the employee’s commute because his disability did not affect his ability to perform any essential job function once he arrived at the workplace.

But, the Seventh Circuit Court of Appeals wasn’t so sure, concluding that “the answer is ‘maybe’ and that the case should not have been resolved on summary judgment.”

“Maybe”? What the heck is that?!?

Not everything was so fluid. The Seventh Circuit confirmed that “an employee’s proposed accommodation must ameliorate the disability, not merely serve personal preferences or convenience.” Plus, “an employer has no duty to help an employee with a disability with the method and means of his commute to and from work, assuming the employer does not offer such help to employees without disabilities.”

But, accommodations at work are different.

The ADA contemplates that a modified work schedule could be a reasonable accommodation. However, “deciding whether a work-schedule accommodation of a disability that affects a commute is reasonable depends on a highly fact-specific inquiry that considers the needs of both employer and employee.”

There’s more of that “it depends” stuff again, which is a line they taught us in law school.

And to complicate matters further, courts around the country handle the situation differently.

For example, this one and this one agreed that the ADA may require a schedule change to accommodate an employee with vision problems and trouble driving. However, this court did not require an employer to allow an unpredictably flexible schedule depending on the employee’s ability to obtain rides. This court concluded that disabilities that create commuting issues are the employee’s outside work problem rather than impose a duty to accommodate.

So, if you came here looking for a bright-line rule, you won’t find it. However, “if a qualified individual’s disability substantially interferes with his ability to get to work and attendance at work is an essential function, an employer may sometimes be required to provide a commute-related accommodation, if reasonable under the circumstances.”

In other words, it depends.

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