Joining a growing number of jurisdictions, including the Third and Ninth Circuit Courts of Appeal, the Court of Appeals for the Second Circuit, covering the states of New York, Connecticut and Vermont, has held that under certain circumstances, an employer may be required to assist disabled employees with their commute to work as a reasonable accommodation under both the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. The Court’s decision in Nixon-Tinkelman v. N.Y. Dep’t of Health & Mental Hygiene highlights an employer’s obligation to consider reasonable accommodations requested by employees with disability-related commuting problems.
Americans with Disability Act Background
The ADA, in essence, requires covered employers to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” Under the statute, a “qualified individual” is someone with a disability who “with or without reasonable accommodation” can perform the essential functions of a particular job. “Disability,” in turn, is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.” Thus, in order to establish she is entitled to a reasonable accommodation, an individual must: (a) show that she has an impairment; (b) identify the life activity that she claims is limited by the impairment; and (c) prove that the limitation is substantial.
The Nixon-Tinkelman Plaintiff, who suffers from a hearing impairment, cancer, heart problems, and asthma, claimed her employer discriminated against her on account of her disabilities when it failed to accommodate her commute to work. Plaintiff, who works and lives in Queens, NY, was temporarily reassigned to her employer’s Manhattan office for a period of nine months. Upon being notified of this transfer, Plaintiff requested that Defendants accommodate her disabilities by transferring her back to an office location closer to her home. Defendants denied this request and Plaintiff thereafter filed suit under the ADA and the Rehabilitation Act. Finding that “commuting falls outside the scope of [p]laintiff’s job, and is thereby not within the province of an employer’s obligations under the ADA and the Rehabilitation Act,” the District Court for the Southern District of New York granted summary judgment in favor of the Defendant.
Second Circuit Opinion
On appeal, the Second Circuit, held that the district court erred in concluding that an employer had no obligation to assist in an employee’s commute, stating that “there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” As a result, the Second Circuit remanded the case to the district court to consider “whether it would have been reasonable for defendants to provide assistance related to Tinkelman’s ability to get to work.” The Court specifically focused on the fact that Plaintiff had worked for many years in a more suitable location and, as a result, the district court “should have considered whether defendants could have reasonably accommodated her needs simply by transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit.”
Nonetheless, because “determining whether a particular commuting accommodation is reasonable normally involves a fact-specific inquiry,” the Second Circuit offered a non-exclusive list of factors to assist the district court’s determination of reasonableness on remand:
- The number of employees employed;
- The number and location of its offices;
- Whether other available positions existed for which the Plaintiff was qualified;
- Whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendants’ operations; and
- The reasonableness of allowing her to work without on-site supervision.
Implications for Employers
The Nixon-Tinkelman decision provides guidance to employers on how to evaluate and handle reasonable accommodation requests related to an employee’s commute. As noted above, the decision is also in line with a number of decisions from other jurisdictions determining whether an employer is required to accommodate commute-related requests. For example, in Colwell v. Rite Aid Corp, the Third Circuit Court of Appeals, covering the states of New Jersey, Pennsylvania, and Delaware, held that changing an employee’s work schedule “in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.” The plaintiff in Colwell requested she only be scheduled to work day shifts due to a vision-impairment that affected her ability to operate a vehicle at night. Similarly, the Ninth Circuit Court of Appeals, in Livingston v. Fred Meyer Stores, Inc., found that the plaintiff’s difficulties in commuting to work due to a vision-impairment required accommodation by the employer, because “seeing” was a major life activity.
The opinions discussed above create a number of issues to which employers must be sensitive. First, the cases make clear that reasonable accommodations are not simply limited to an employee’s on-site work performance, but may, under the appropriate circumstances, also include a duty to accommodate an employee’s limitations in commuting to and from their places of employment. Second, employers should remember that while it is “generally the responsibility of the individual with a disability to inform the employer that an accommodation is needed,” employers are obligated to engage in good faith in the interactive process with respect to all disability-related accommodation requests. Thus, although employers are not obligated to provide accommodations that would cause them “undue hardship,” requests for reasonable accommodations relating to commuting issues must be considered on a case-by-case basis and should not be rejected out of hand.
To discuss any of your company’s employment-related needs, contact any attorney in the Gibbons Employment & Labor Law Department.
Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.