Do Employers Have to Accommodate an Employee’s Commute to Work? One Court Said Yes – Sort Of

The U.S 7^th Circuit Court of Appeals recently ruled that a case can go to trial on whether an employer was required to provide an accommodation to an employee that had difficulty driving at night and whose shift ended at 9:00 p.m. According to the court, the main question before it is whether the employee was entitled to a modified work schedule as an accommodation to make his commute safer.

In the case of EEOC v. Charter Communications, No: 2:18-cv-01333-BHL (7^th Circuit Court of Appeals, 7/28/23), Kimmons worked in a call center for defendant Charter Communications (Charter). Cataracts in both eyes made his vision blurry and made seeing in the dark difficult, thus making nighttime driving unsafe. Public transit was not an option on his schedule. Bus service ended at 9:00 p.m. Kimmons asked for an earlier work schedule to reduce his nighttime driving. Charter granted his first request for a 30-day change but denied his request to extend the schedule so he can find a place closer to work.

Kimmons filed an EEOC charge, and the EEOC sued the employer on his behalf.

The District Court ruled in favor of Charter in summary judgement ruling that the employer had no duty under the ADA to consider accommodating a commute to work.

It was appealed to the 7^th Circuit Court of Appeals, who overturned the ruling. The Court stated that “if an employee’s disability substantially interferes with his ability to travel to and from work, the employee may be entitled to a reasonable accommodation if commuting to work is a prerequisite to an essential job function, including attendance … and if the accommodation is reasonable under all the circumstances.”

In this case, the Court recognized that the accommodation requested was not unreasonable – the continuation of a modification to the work schedule while the employee looked for a closer place to work. Kimmons alleges there was never a time he worked in the Milwaukee call center when he drove himself to the office. Instead, through a combination of public transportation and friends, Kimmons managed to get to work. This travel arrangement that was frequently unreliable.

The bus service stopped at 9:00 p.m. and taking an Uber or taxi was not reasonable because the cost of the ride exceeded his salary for the day. The company suggested carpooling, but when Kimmons asked the company for names of other employees who lived near him, the company said the information was confidential. Charter represented that being at work was an essential function of the job. Therefore, the Court recognized that assertion and stated that schedule adjustments have been determined by the courts in other cases to be a reasonable accommodation. So why not in this case? Therefore, it was allowed to go back to the District Court for trial.

There will be some factors that will come into play. For example, did Mr. Kimmons start looking for a place to live during the first round when the accommodation was granted, or is the housing shortage causing issues with pricing? Was Mr. Kimmons just angling for an earlier shift?  And why was telecommuting not a reasonable option in this case? These questions and more will likely have to be answered during the trial.

In the final analysis, the Court stated that they are not going to prescribe “bright-line rules as to when an employee’s disability interferes with essential job attendance or whether particular accommodations are reasonable. Those questions are reserved for analysis under the facts of a particular case. But if a qualified individual’s disability substantially interferes with his ability to get to work and attendance at work is an essential function, an employer may sometimes be required to provide a commute-related accommodation.” So, the answer to the question is maybe.

Source: Constangy 9/15/23

By Anthony Kaylin, courtesy of SBAM-approved partner, ASE.

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