ADA accommodation: Do you have to help employees with their commute?

Does an employer’s ADA accommodation duty extend so far as to require it to change an employee’s job schedule to help with their commute to work?

A new federal court decision says the answer is “maybe.”

And while that’s a frustratingly non-committal answer, it means that in the Seventh Circuit (Illinois, Indiana and Wisconsin), there are circumstances under which ADA-covered employers might have to make the accommodation.

Don’t take a narrow view

Many may think of reasonable accommodations as on-the-job adjustments that directly help employees perform job functions. But the concept extends beyond that type of help, and it’s dangerous – and erroneous – for employers to limit their view of reasonable accommodation in that way.

For example, a leave of absence can be a reasonable accommodation even though it is not a change to the work environment or how a job is done. And in some jurisdictions — including now the Seventh Circuit — employers may need to make schedule-related changes that help with an employee’s commute to work.

This case involved James Kimmons, who began working in a call center for a company called Charter Communications in 2016. Kimmons has cataracts in both eyes, and night driving is unsafe for him because he does not see well in the dark.

Kimmons’ shift started at noon and ended at 9 p.m., and it was a one-hour drive to and from work.

Driving at night was tough

Because of his night vision issues, Kimmons asked to work from 10 a.m. to 7 p.m. The employer granted the request, but only for 30 days. It denied Kimmons’ request for another 30 days so he could have more time to find a place to live that was closer to work, insisting that the ADA did not require “assistance with [his] commute” to work. It told him to look into public transportation or carpooling with other employees.

But the schedule for public buses just did not work out, and when Kimmons asked Charter for the names of co-workers who lived near him it told him that information was confidential and could not be disclosed. Taxi and ride-share services were not a viable option because they would cost Kimmons more than he was being paid.

Kimmons stopped working for Charter in January of 2017, and the EEOC later sued the employer on his behalf to allege unlawful denial of reasonable accommodation under the ADA.

A lower court ruled for the employer, reasoning that the requested scheduling accommodation was not required “because [Kimmons] did not need any accommodation to perform an essential job function once he arrived at work.”

On appeal, a three-judge panel of the Seventh Circuit Court of Appeals reversed the lower court’s ruling and sent the case back to it for further development.

Schedule-related help with commute may be required

Here is the gist of the appeals court’s ruling, taken directly from the decision:

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.

To support this position, the decision pointed to a Second Circuit ruling that said an employer might be required to pay for a parking space for an employee with a disability as well as a Third Circuit decision that said transportation-related accommodations may sometimes be required.

The Seventh Circuit ruling also acknowledged a split of authority on this question. It referenced a Sixth Circuit decision that held a changed schedule for commuting reasons was not required as well as a similar Tenth Circuit ruling.

But it came down on the side of employees, finding that such an accommodation might be required. It added that in analyzing whether a schedule change should be granted for commuting purposes, courts should “emphasize employee responsibility for the factors within the employee’s control, without losing sight of the employer’s control over work schedules.”

As a best practice, employers should carefully evaluate disability-related requests that are made to make a commute safer and provide the accommodation as long as it does not impose an undue hardship.

Equal Employment Opportunity Commission v. Charter Communications, LLC, No. 22-1231 (7th Cir. 7/28/23).