Perhaps employers have been mistaken in assuming they never have to worry about a worker’s commute when accommodating a sickness or disability. In certain circumstances, an employer may be required to assist with an employee’s commute, the 2nd Circuit says in a recent opinion (Nixon-Tinkelman v. New York City Department of Health and Mental Hygiene).
Barbara K. Nixon-Tinkelman asked to be allowed to work from a site closer to her home as an accommodation for her disability, which the court described as “cancer, heart problems and asthma.” When her employer, the New York City Department of Health and Mental Hygiene, denied her request, she filed suit. She alleged discrimination based on disability, in violation of Sections 501 and 504 of the Rehabilitation and the Americans With Disabilities Acts. A district court said “no” to her action, because “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.”
On appeal, the 2nd Circuit reversed and remanded the case to the lower court. “Our case law establishes that in certain circumstances, an employer may have an obligation to assist in an employee’s commute. Indeed, this Court has stated 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.’” Determining whether a particular commuting accommodation is reasonable involves a fact-specific inquiry, the court explained. “Here, the district court erred because it concluded that an employer had no obligation to assist in an employee’s commute, when we have held that, in certain circumstances, such an obligation can exist.”
The appellate court remanded the case to the lower court to reconsider whether it would be reasonable for the employer to provide a commuting accommodation. For example, the 2nd Circuit said, the district court should have considered whether the employer could have reasonably accommodated her needs simply by:
- transferring her [to a] closer location;
- allowing her to work from home; or
- providing a car or parking permit.
In evaluating reasonableness, the court should consider: the number of employees employed by the department; the number and locations of its offices; whether other positions are available for which Tinkelman is qualified; and whether the suggested changes would pose an undue hardship.