Decided legal cases offer guidance when it comes to an employer’s responsibility to accommodate a disabled employee’s reasonable request for help on the job.  Many employers are not aware that it’s actually their duty to participate in the interactive process.  An employer’s engagement with that request should begin as soon as an employee makes inquiry, or an employer sees or hears that an employee has a disability requiring workplace attention.

Colwell v. Rite Aid Corporation
Colwell v. Rite Aid Corporation is a 2009 decision made under the Americans with Disabilities Act (ADA).  The action was initially filed by a part-time retail clerk, based on constructive discharge.  The plaintiff was partially blind, which caused difficulties in travelling to work after a location transfer.

Under the ADA, an employer discriminates against an employee by not making “reasonable accommodations to the known physical or mental limitations of the [employee] 505*505 unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the [employer].” “The term `reasonable accommodation’ may include — (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”

Said the Court, “there is nothing inherently unreasonable, given the . . . views of Congress and the agencies responsible for overseeing the federal disability statutes, in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.”

The Third Circuit held that under certain circumstances, the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable. One such circumstance is when the requested accommodation is a change to a workplace condition that is entirely within an employer’s control and that would allow the employee to get to work and perform her job. A change in shifts could be that kind of accommodation.

As a cashier, Colwell was required to be at work to perform any of the functions of her job, and any change in shifts was deemed clearly a change in a workplace condition under the employer’s control. Although the District Court held that employers are not required to provide an employee with an accommodation that facilitates their commute to work, those cases did not speak to Colwell’s issues, said the Third Circuit.  Rather, the Court held, the scheduling of shifts is not done outside the workplace.  They found it is for the jury to decide whether a shift change was a reasonable accommodation under the circumstances

In sum, said the Court, “The ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. As Rite Aid makes no factual argument about the reasonableness of Colwell’s request, nor has it argued before us that scheduling [her] for day shifts would have been an undue burden, those questions are ultimately for the jury.”

Nixon-Tinkelman v. N.Y.C.
In a 2011 case, Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene, the United States Court of Appeals again stated that the employer may be required to adjust and meet the disabled employees request for assistance with work commuting, under the ADA.  In this case the plaintiff was hearing impaired and diagnosed with cancer, heart problems, and asthma.  The Court deemed that commuting to and from work was within the plaintiff’s job scope, and it sent the case back for a District Court analysis, because the employer should have considered that the disabled employee had worked at a convenient location for a long time.  As such, they should have considered the following accommodations:

1. Transferring the disabled employee back to the original or equally close location;
2. Offer the employee an opportunity to work from home; or
3. Provide the employee with a vehicle and/or parking permit to make the commute easier.

While numerous federal Circuit Courts have determined that employer’s ADA responsibilities  do not include commuting, the Nixon-Tinkleman case marks the latest and perhaps most extensive incursion by the federal appeals courts that suggests otherwise.  In some cases, the federal court of appeals find that disabled employees who are submitting commuting-related requests are quite reasonable and should be accommodated by the employer.

Their conclusion that the plaintiff’s accommodation request was reasonable raised doubts as to whether the employer violated their worker’s right to reasonable accommodation.

Are You Covered Under the Americans with Disabilities Act?

The answer is yes! The ADA is in place to protect all qualified workers with disabilities. You are covered under the ADA if you are an employee with a physical or mental disability:

• That limits any major life activity
• You have a history of such a disability; or
• Your employer treats you as if you had a disability, even if you don’t.

To  be properly protected under the ADA you must have proof of or be regarded as having a major impairment that restricts some form of major life activity (hearing, seeing, speaking, walking, breathing, personal and manual tasks, and/or caring, learning or working).  To be protected from job discrimination under the act, you must be qualified and be able to perform essential job functions – with or without reasonable accommodation.

An employer can’t refuse to hire you or maintain your employment if your impairment prevents you from performing other duties that aren’t essential to the job.

Conclusion

Workplace discrimination cases are complex and fraught with danger for workers.  No one should face these issues without the assistance of experienced legal counsel, who are knowledgeable about the law, compassionate, yet tough advocates for workers in these circumstances.  We urge you to call or write us today to discuss your concerns.  We will review the facts with you, research the law, and give you an opinion as to the likelihood of success in your matter.  We will present your options, and give you a clear pathway to move forward.  Give us a chance to help you achieve outcomes that are just and reasonable for your family and you.  We will be happy to serve your legal needs.