Tuesday, May 15, 2012

Reasonable accommodations and commute times

How far do you have to go to accommodate an employee’s disability? In Regan v. Faurecia Automotive Seating (5/10/12), the 6th Circuit provides some boundaries, and teaches us a lesson about accommodation best practices.

Alisha Regan—an assembly line worker at Faurecia—suffers from narcolepsy, a sleep disorder that causes excessive sleepiness and frequent daytime sleep attacks. When her supervisor pushed back by an hour the start and end times of her shift, Regan advised that her narcolepsy would make it difficult for her to get to work, as it would push her commute into rush hour, causing longer commute times and a greater likelihood of sleepiness.

When the company refused to allow her to work her original schedule, Regan resigned, noting the “tremendous consequence” the change in work hours would have on her narcolepsy. She then filed suit, claiming that the company’s refusal violated the disability discrimination laws.

The court of appeals affirmed the trial court’s decision that the ADA does not require an employer to accommodate an employee’s commute to and from work:

While an employer is required to provide reasonable accommodations that eliminate barriers in the work environment, an employer is not required to eliminate those barriers which exist outside the work environment. We find … that the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours.

This case is not the first I’ve covered discussing whether an employer has an obligation to provide a reasonable accommodation for an employee’s commute. For example, in Colwell v. Rite Aid Corp., the 3rd Circuit reached the opposite conclusion, finding that an employer must change an employee’s work hours if needed to enable a disabled employee to commute to and from work.

The real lesson here isn’t whether employers do, or do not, have to accommodate a disabled employee’s commute to and from work. Given the conflict between Regan and Colwell, I’d say this issue of open for interpretation (even though Regan is controlling in Ohio). Instead, the lesson is how employers should handle these issues when they arise. The ADA requires that the employer and employee engage in an interactive process (a back and forth to determine whether and what type of accommodation would be effective).

What shouldn’t you do in a situation such as this one? Don’t dismiss the employee’s request outright (as the employer appears to have done in Regan). Don’t force the employee to take FMLA leave as a prerequisite to the interactive process (as the employer in Regan appears to have done).

Each conversation with an employee (which should be documented in his or her confidential medical file) is an opportunity to establish your consideration of the employee’s specific needs in light of the specific and essential job requirements. If you legitimately cannot start a production line an hour early to accommodate an employee’s commuting schedule request, then so be it. But, how can you (and a court) judge the reasonableness of your decision if you never even have the conversation in the first place?