Giving Employees a Lift: Must Employers Accommodate an Employee Who Commutes?

by Joseph "Trey" L. Wood, III

Employers are typically aware of the fact that they must reasonably accommodate employees with disabilities while at work, but does that mean that they have an obligation to help employees get to work? That issue has been coming up a lot recently and the courts that have examined the issue have given differing opinions on the subject.

Recently, the Second Circuit Court of Appeals (which covers New York, Connecticut and Vermont) found that employers may have such an obligation. In the case that they considered, the employee, who had a hearing impairment and also suffered from cancer, worked for the New York Department of Health and Mental Hygiene at their office in Queens. The Department reassigned her to work at its Manhattan office for nine months. The employee requested that her employer assist her with her commute to Manhattan during this time. While the district court found that commuting "falls outside the scope" of the employee's job and the employer's obligation to accommodate, the Second Circuit reversed finding 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."

The case has been sent back to the district court with instructions to analyze whether it would have been reasonable for the employer to provide assistance with the employee's ability to get to work. The Second Circuit also listed the following as examples of what the employer should have considered as possible accommodations:

• Transferring the employee back to Queens or another closer location;
• Allowing the employee to work from home; or
• Providing the employee with a car or parking permit.

The Court also listed the following as a non-exclusive list of factors for evaluating the reasonableness of possible accommodations including:

• The number of employees employed by the employer;
• The number and location of its offices;
• Whether other available positions existed which the employee showed she was qualified to perform;
• Whether the plaintiff could have been shifted to a more convenient office without unduly burdening the employer; and
• Whether it would be reasonable for the plaintiff to work without on-site supervision.

While other Circuit Courts of Appeals have found that the duty to accommodate does not extend beyond the workplace, and consequently no duty to assist employees with their commute, this issue is bound to come up again and again as they struggle to interpret the requirements of the Americans With Disabilities Act Amendment Act.

Accordingly, if your company is facing a request by a disabled employee with a request to assist with his/her commute, the prudent course of action is to carefully weigh all factors and include competent counsel on the decision-making process.