Tuesday, August 3, 2010

Getting to Work

New Image An early ADA decision, Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995), suggested that the statute might have some effect beyond the employer's front door, holding that an employer might have to provide an employee assistance in getting to work as part of its reasonable accommodation duty. Lyons requested accommodation in the form of her employer paying for her parking spot in Manhattan. She lived in NJ (natch) and was unable to take public transportation because she was unable to stand for long periods of time and climb stairs. As you might guess, parking spots in the Big Apple were pricey -- Lyons was spending $300 to $520 a month. The court reversed summary judgment of the district court and stated that reasonableness is a factual determination and it may turn on the employer’s geographical location and financial resources.


Lyons has had surprisingly little effect until recently, although one can imagine that for many disabled individuals, the daily commute to work is a real barrier to employment. Public transportation is not always feasible, leaving the employee with no choice but to drive to work. Lyons involved paying for parking, but other accommodations -- such as scheduling -- might be both less costly for the employer and of more assistance.


A recent case in the Third Circuit held precisely that. Colwell v. Rite-Aid Corp., 602 F.3d 495 (2010), held that an employer might be obligated to accommodate a disabled person in getting to work, if reasonable. Jeanette Colwell was a part-time clerk at a Rite-Aid store in Pennsylvania who was blind in one eye. Colwell’s physician stated that she should not drive at night and she requested all dayshifts. Rite Aid argued that Colwell’s trouble with getting to work at night was not the kind of difficulty contemplated by the ADA because it is a commuting problem unrelated to the workplace. The Third Circuit disagreed, stating that a modified work schedule is the type of accommodation that is expressly mentioned in the statute.


Both cases implicate the EEOC's guideline which indicate that the ADA does not require an employer to make accommodations primarily for the employee’s personal benefit. Now, getting to work is not exactly for personal benefit, but both cases illustrate the occasional difficulty of drawing the work/personal line. Certainly, many employers view their workers' commutation as their own responsibility.  The Colwell court finessed the problem by viewing the accommodation as workplace in nature -- changing shifts -- even if the reason for the shift change was external to the workplace: "our holding does not make employers 'responsible for how an employee gets to work. . .  . The scheduling of shifts is not done outside the workplace but inside the workplace."


Colwell cited Lyons, but expressed no opinion on the provision of a parking space, thus leaving the workplace boundaries for accommodation still unclear.


A twist, which the Colwell court didn't explore, was that the Rite-Aid store in question was unionized. If  shift preferences were controlled by the seniority provisions of a collective bargaining agreement, under Barnett,would make an otherwise reasonable accommodation unreasonable. Rite-Aid did mention seniority and fairness to other workers, but it apparently did not interpose a formal seniority system as the basis for its denial of accommodation.


Finally, Colwell is interesting because it suggests that there is a continuing dispute as to which party failed to participate in the interactive process. Since a finding that the accommodation would have been reasonable would seem to decide the case in favor of plaintiff, the court's continued concern about the interactive process might suggest that, even if the accommodation were reasonable, plaintiff's unjustified termination of it would  bar her suit. Maybe more on this later.


Thanks to Renee Levine for her help on this.




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A related case is EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005), concerning the failure of Sears to provide an employee diagnosed with neuropathy an accessible space and the shortest possible route to her work station.

Posted by: Paul Mollica | Aug 3, 2010 7:52:50 AM

An interesting aspect of this is that the work/personal boundary is an issue that has been well-explored elsewhere in employment law. The coming-and-going rule in workers' compensation is very close to Colwell and, indeed, Colwell's solution to the problem is reminiscent of the general approach in workers' comp. That is, there's a general rule (no workers' comp during commuting), but then there are many, many nuances and exceptions (in Colwell, the exception is that commuting accommodations will be covered if they entail shift changes, but maybe not otherwise). The issue also arises regularly under the FLSA where in-kind benefits may or may not be counted towards the minimum wage or included in overtime wages depending on whether they are "primarily" for the benefit of the employer (work) or not (personal).

After reading the post, I took a look at Colwell and, of course, it makes no mention whatsoever of how the issue is resolved elsewhere. Neither general approach to this is all that appealing. On the one hand, the purposes of the ADA are different from those of workers' comp laws, and both are different from the FLSA. So maybe this issue should be resolved differently in each area, with great sensitivity to each area's underlying goals and purposes. With that approach, we'll end up with three (or more) distinctions between work and personal and a convoluted mess. On the other hand, maybe we should try to have a general approach to the work/personal distinction that can do work across all areas of employment law, keep things simpler, provide more guidance, etc. But then we'd lose any differences that should be there because of differences in goals and purpose. Article?

Posted by: Steve Willborn | Aug 3, 2010 1:37:33 PM

If the last word in Steve's comment suggests that this would be a good topic for an article, it sounds like he's halfway written it and should continue!

Posted by: CAS | Aug 7, 2010 2:09:13 AM

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