Wednesday, April 14, 2010

Reasonable accommodations for an employee’s inability to commute to work

Consider the following story. An employee with a history of eye problems (glaucoma and partial blindness) presents a doctor’s note recommending that she not drive at night. That note presents a scheduling problem, since she works third shift, public transportation is not available, and she has no other way to consistently get to work. Do you have a responsibility to accommodate this employee by transferring her to a day shift so that she can commute? Here’s the answer, at least according to the 3rd Circuit in Colwell v. Rite Aid Corp. (4/8/10) [pdf]:

Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties…. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates … [and] that under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable…. In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work.

This decision potentially opens a can of worms for employers. How far do you have to go to accommodate an employee’s disability-related commuting difficulties? Under this case, a shift-change is one possible accommodation. What about arranging for rides by co-workers? Paying for taxis or other transportation? Exceptions to attendance policies and rules? What is reasonable will change from employee to employee and workplace to workplace. What never changes, however, is your responsibility to explore these options through the interactive process required by the ADA.

Employees with medical conditions that impede their ability to do their jobs raise a huge red flag. Before summarily denying a reasonable accommodation, you should be consulting with counsel to make sure that you are not stepping into a lawsuit.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or