We all know that employers with 15 or more employees are covered by the Americans with Disabilities Act and may have to provide reasonable accommodations to allow employees with disabilities to perform the essential functions of their jobs.
But are employees entitled to reasonable accommodations to get to work in the first place?
The answer could be yes.
This issue was addressed recently by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in a lawsuit filed by the U.S. Equal Employment Opportunity Commission. Here’s the story:
James Kimmons worked in a call center in Milwaukee but lived in Racine, which was about an hour away (roughly midway between Milwaukee and Chicago). His shift ran from noon until 9 p.m., meaning he didn’t get home from work until about 10 p.m.
Mr. Kimmons had mild cataracts in both eyes, which impaired his vision and (at least, according to his optometrist) made it inadvisable for him to drive at night.
He asked his employer to temporarily change his working hours to 10 a.m.-7 p.m., which would get him home before dark during the summer months anyway. The employer agreed to the change for a 30-day period. So far, so good.
At the end of the 30-day period, Mr. Kimmons asked for another 30 days on the 10 a.m.-7 p.m. shift. He said he needed the time to find a place to live that was closer to the call center in Milwaukee.
The employer said not just "no," but "heck, no, we don't have to accommodate your commuting needs, we've already done more than you deserve, and we are done." (My paraphrase.)
Mr. Kimmons tried to make do with the noon-9 p.m. schedule, but public transportation was not available after 9 p.m. At the employer’s suggestion that he bum a ride with co-workers, he asked for names of co-workers who lived near him, but the employer refused to provide them, saying it was confidential information. Taxis or ride shares would have cost him more than his salary. According to the court, “[f]or unrelated reasons,” Mr. Kimmons stopped working for the employer.
You know, or can guess, the rest of the story. Mr. Kimmons filed an EEOC charge, and the EEOC sued the employer on his behalf.
Win some, lose some
A federal district court judge in Wisconsin granted summary judgment to the employer. According to the judge, the employer had no duty under the ADA to consider accommodating a commute to work. But the EEOC appealed, and the Seventh Circuit reversed the district court’s decision.
So now the case will go to a jury if the employer and the EEOC don’t settle it first.
The appeals court decision has a very thorough discussion about what employers should look for when considering whether to make reasonable accommodations to help an employee get to and from work. But, unfortunately, no clear answers.
According to the Court,
“[I]f an employee’s disability substantially interferes with his ability to travel to and from work, the employee may be entitled to a reasonable accommodation if commuting to work is a prerequisite to an essential job function, including attendance ... and if the accommodation is reasonable under all the circumstances.”
(Emphasis added.)
In this case, because Mr. Kimmons was seeking only a 30-day schedule adjustment – not, say, a company-furnished limo and uniformed driver, or a penthouse on the shore of Lake Michigan – and because schedule adjustments are clearly types of “reasonable accommodations” recognized by the EEOC and the courts, a jury would have to decide whether the employer should have granted the accommodation.
What a commuter with a disability has to prove
To get to a jury on a commuting reasonable accommodation case, the Court said that the employee must show that an accommodation would let the employee perform the essential functions of the job (one of which would be regular attendance). If the employee succeeds, then the employer can still prove that the requested accommodation would be an undue hardship.
Significantly, the Court noted, “An employee who has chosen to live far from the workplace or failed to take advantage of other reasonable options, including public transportation, will rarely if ever be entitled to an employer’s help in remedying the problem.”
With respect to the undue hardship issue, the Court said that it would consider the impact of the accommodation on the business operation. The fact that the employer had previously made an accommodation on a trial basis does not automatically defeat the undue hardship defense. “We do not intend to endorse an interpretation of the ADA where ‘no good deed goes unpunished.’” Also, employers are under no obligation to provide “the exact accommodation the employee asks for. ...”
But in Mr. Kimmons’ case,
“[he] was not asking for an unaccountable, work-when-able schedule or a permanent accommodation. He did not demand the company itself transport him to work. He asked only for a temporary work schedule that would start and end two hours earlier while he found time to move closer. A jury could have found his requested accommodation to be reasonable.”
Loosey-goosey
In other words, in determining whether an employer has to accommodate an employee whose disability makes commuting difficult, a loosey-goosey standard applies. That’s not a criticism of the Court’s decision or of the ADA reasonable accommodation obligation. Reasonable accommodation is, by its nature, “loosey-goosey” in that it always depends on the facts and circumstances of the individual situation. ("Loosey-goosey" is a legal term of art. Really.)
My own two cents about this employer?
Based only on the facts provided in the Seventh Circuit opinion (which may not be the whole story), I would have advised the employer to grant the additional 30 days and give Mr. Kimmons the chance to relocate. That might or might not have resolved the driving-in-the-dark problem. Milwaukee is way up north (at least it is to me, a transplant who's been living in the Southeast for more years than she'd like to admit), and in the winter daylight ends about 4 p.m. That means no scheduling accommodation in the winter was likely to allow Mr. Kimmons to avoid that dark ride home with his cataracts. BUT ... maybe he’d have found an apartment nearby during the summer, while Wisconsin was still the Land of the Midnight Sun. And this happened years before the current housing shortage, so in those days there was a fighting chance of finding an affordable place to live.
And here's one more crazy thought. If he absolutely had to work from noon to 9 p.m., how about letting him work from home? Telecommuting was not an issue in this case, and the events that resulted in the lawsuit were pre-COVID -- when working at home was not as accepted as it is now. But in hindsight -- even blurry hindsight -- allowing remote work might have spared this employer a jury trial.
Off topic, Shana tovah to our Jewish readers. Happy new year 5784!
