Commute Accommodations for Disabilities Spur Federal Court Rift

A federal appeals court divide over whether employers must accommodate workers who have trouble commuting because of a disability has the potential to resolve without US Supreme Court intervention.

The US Court of Appeals for the Seventh Circuit recently joined the Second and Third circuits in holding that the Americans with Disabilities Act can—under the right circumstances—require an employer to accommodate a disabled worker in getting to and from work. The Chicago-based appeals court revived a lawsuit the Equal Employment Opportunity Commission brought on behalf of a Charter Communications LLC employee who has problems driving at night.

But the Seventh Circuit used to stand on the other side of the divide, along with the Sixth and Tenth circuits, which have said employers aren’t required to provide accommodations to eliminate transportation barriers because they exist outside of the workplace, or because doing so would be preferential treatment.

The conflict over accommodating commutes is less black-and-white than typical circuit splits both because of the opinions’ language and the individualized nature of ADA accommodation cases generally.

The soft split on the issue creates the chance for federal appeals courts to iron out their differences via standard rulings from three-judge panels, possibly eliminating the need for full-circuit reconsideration of their prior case law or the high court stepping in.

And considering how rarely the justices take up ADA accommodation cases, that lower-level resolution is key.

The only case of that type the Supreme Court has decided was US Airways v. Barnett in 2002, which addressed job-transfer accommodations that conflict with seniority systems, said Stephen Befort, a professor emeritus at the University of Minnesota.

“There the court had a very clear legal issue, but many accommodation issues are fact specific,” Befort said. “Unless the court sees clear error, it tends not to jump into those.”

Defining Requests

The ADA calls on employers to provide reasonable accommodations to disabled workers unless a job modification would create an undue burden for an employer. The primary inquiries—whether the accommodation is reasonable or creates too much of a burden—are separate, though courts sometimes consider employer hardship as part of their reasonableness analysis.

How courts define commute-related accommodation requests often dictates the results, said Nicole Buonocore Porter, a disability law scholar who directs the Martin H. Malin Institute for Law & the Workplace at Chicago-Kent College of Law.

When courts view the commute as outside the workplace, they tend to hold that employers don’t have a duty to grant commute-related accommodations, Porter said. Courts tend to have that “knee-jerk reaction” in part because federal wage and hour law doesn’t require pay for the time getting to and from the job, she said.

But commute-based requests almost always seek schedule changes, which are fair game for an ADA accommodation, Porter said.

The Seventh Circuit’s July ruling in EEOC v. Charter Communications and the Third Circuit’s decision in Colwell v. Rite Aid Corp. said schedule changes to accommodate vision-related barriers to driving can be reasonable.

The Second Circuit went further in Lyons v. Legal Aid Society, holding that help paying for a parking spot could be a reasonable accommodation for a worker whose injuries prevented her from walking long distances. Although the ADA doesn’t define “reasonable accommodations,” the legislative history shows that Congress envisioned that the law could cover employer help getting a worker to and from the job, the court said.

‘Points on a Continuum’

The legal framework for assessing the reasonableness of an accommodation request is highly fact dependent, making it ill suited for bright-line rules, said Jasmine Harris, a University of Pennsylvania law professor who’s written extensively on disability issues.

The test’s individualized, fact-specific nature makes it possible for a circuit court to find an accommodation unreasonable the first time it assesses it, then decide in another case that essentially the same workplace modification is reasonable, Harris said.

“That’s why it’s often dangerous to see these things as on-off switches rather than points on a continuum,” she said. “I think the Sixth and Tenth circuits can absolutely distinguish their earlier rulings against commute accommodations in future cases.”

The Seventh Circuit did precisely that when it held that a Charter Communications worker with cataracts could have made a reasonable request for a schedule change to avoid night driving. The appeals court 15 years earlier said an employer had no duty to provide a commute-related accommodation.

The possibility that the ADA’s accommodation requirement covers the commute—as seen in the Charter Communications decision—underscores that employers shouldn’t assume that regular work attendance at certain times is an essential job function, said Michael Schmidt, vice chair of the labor and employment department at Cozen O’Connor PC.

Essential job functions are the core duties that workers must be able to perform with or without accommodations. If they can’t, then they’re not qualified for the job and aren’t owed accommodations under the ADA.

“Make sure you’ve identified and can justify essential functions,” Schmidt said. “An employee might need a modified schedule because they have an eye condition and can’t work later hours. That might be an accommodation that’s reasonable and required. It’s up to a fact finder to decide that.”