Federal Circuits are split over whether the Americans with Disabilities Act (ADA) requires employers to accommodate commuting or transportation difficulties outside the work environment. In late July 2023, the U.S. Court of Appeals for the Seventh Circuit decided a case applying the ADA to an employee who requested a schedule change because his cataracts made it difficult to commute safely at night. The Seventh Circuit concluded the ADA might require such an accommodation. EEOC v. Charter Commc’ns, LLC, 75 F.4th 729 (7th Cir. 2023).
Prior to this ruling it was commonly accepted that the Seventh Circuit, along with the Sixth and Tenth Circuits, held that employers are not required by the ADA to provide accommodations to transportation barriers that exist outside the workplace. See Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873 (10th Cir. 2021) (affirming judgment for employer; where employee became legally blind and had long commute, ADA did not require employer to allow unpredictably flexible schedule depending on employee’s ability to obtain rides) and Regan v. Faurecia Automotive Seating, Inc., 679 F.3d 475 (6th Cir. 2012) (affirming summary judgment for employer; employee’s narcolepsy affecting safety of long commute posed problem outside work environment, so ADA did not require accommodation). While the Second and Third circuits were perceived to be on the other side of the issue. See Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010) (reversing summary judgment for employer; employee’s vision problems made driving at night dangerous, and ADA could require schedule change to accommodate disability), and Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995) (reversing dismissal on pleadings; employee’s difficulty in walking could require accommodation in the form of parking space near work).
The Seventh Circuit agreed with the result in each of these cited cases, but not necessarily with any perceived bright line rules associated with their reasoning. In fact, the Seventh Circuit specifically declined to adopt a rule that an employer never has an ADA duty of reasonable accommodation concerning an employee’s ability to get to work. Instead, the Court wrote, “[w]e have no doubt that getting to and from work is in most cases the responsibility of an employee, not the employer. But if a qualified employee’s disability interferes with his ability to get to work, the employee may be entitled to a work-schedule accommodation if commuting to work is a prerequisite to an essential job function, such as attendance in the workplace, and if the accommodation is reasonable under all the circumstances.”
While there seems to be a split among the circuits, that appearance is driven by the fact dependent nature of reasonable accommodation cases and how those facts are presented by the parties to the courts. There is no bright line test of reasonableness, which requires an individualized assessment. Nonetheless, it is likely that courts eventually will agree that if physical jobsite presence and predictable attendance are essential job functions, the ADA may require an employer to grant an accommodation that normally is in the employer’s control, such as changes in shifts or work hours or work locations, if granting the accommodation effectively will enable an employee to perform the essential functions of their position.