Seventh Circuit Says Employers May Need to Accommodate Transportation Issues Under ADA

In EEOC v. Charter Communications, LLC, the Seventh Circuit Court of Appeals recently held an employee with a disability may be entitled to an Americans with Disabilities Act (ADA) accommodation to get to work when attendance in the workplace is an essential job function and the accommodation is reasonable under the circumstances. Although the court engaged in a fact-specific inquiry into the respective responsibilities of employer and employee, the opinion also affects employers weighing attendance in the workplace as an essential job function in the post-pandemic workplace.

Quick Hits

• A disabled employee may be entitled to an ADA accommodation to get to work when attendance is an essential job function and the accommodation is reasonable, the Seventh Circuit held.
• Similar reasonable accommodation cases will require fact-specific analyses rather than bright-line rules.
• A reasonable accommodation analysis “should emphasize employee responsibility for the factors within the employee’s control, without losing sight of the employer’s control over work schedules.”

Background

The plaintiff employee worked in a call center for the defendant employer. The employee developed cataracts, which caused difficulties with nighttime driving. The employee asked for an earlier work schedule to reduce his nighttime driving. The employer granted the employee’s first request for a thirty-day schedule change, but denied the employee’s subsequent request to extend the schedule for another thirty days while he tried to move closer to the workplace. The employee then used a combination of public transportation and friends to get to work, although these arrangements were reportedly unreliable.

The U.S. Equal Employment Opportunity Commission (EEOC) sued on behalf of the employee, alleging failure to accommodate under the ADA. The district court granted summary judgment to the employer, holding the employer had no obligation to accommodate the employee because his cataracts did not affect his ability to perform any essential function of his job once he arrived at the workplace. The Seventh Circuit reversed, finding a jury question as to whether a thirty-day extension of the modified work schedule, so the employee could move closer to the workplace, was a reasonable accommodation under the circumstances.

Analysis

The Seventh Circuit declined to adopt a bright-line rule regarding the duty to provide a reasonable accommodation to allow an employee with a disability to get to work. Instead, the court held, “[I]f 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 in the workplace, and if the accommodation is reasonable under all the circumstances.”

The court analyzed cases in four sister circuits, and, while endorsing their conflicting outcomes, admitted it could not reconcile the language in all cases. The Seventh Circuit noted those cases highlight the problems that arise from a combination of employee choices (e.g., where to live) and employer choices (e.g., work schedule). According to the court, “The analysis [of a reasonable accommodation] should emphasize employee responsibility for the factors within the employee’s control, without losing sight of the employer’s control over work schedules.”

Takeaways

The Seventh Circuit’s opinion provides at least three takeaways for employers.

First, transportation-related accommodations may be required under the ADA, even if an employee’s disability does not impact his or her ability to do the job once at the workplace. ADA reasonable accommodations have a “broad and flexible reach.” Although an “unusual exception,” even barriers seemingly outside the workplace, such as transportation difficulties, may need to be accommodated if they impact a prerequisite to an employee’s performance of an essential job function, such as attendance in the workplace.

Second, like other accommodation requests, transportation-related accommodation requests require a fact-specific inquiry. At a minimum, employers may want to consider the benefits and efficacy of the accommodation, the duration of the accommodation, alternatives to the accommodation, the cost to the employer and consequences for the employee’s performance, other employees, and the business, and the burden on the employer.

Last, attendance in the workplace remains a significant consideration for employers. The court assumed attendance in the workplace was an essential function of the call center position, which triggered the possibility of accommodations to enable the employee to meet that essential function. If, on the other hand, attendance in the workplace is not an essential function of a position, transportation-related accommodation may not be required; however, remote work may then be a reasonable accommodation to enable an employee to meet other essential functions of a position.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will publish updates on the Leaves of Absence blog as additional information becomes available.

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