Federal Appeals Court Holds That Employers May Be Obligated Under The ADA To Accommodate Commuting To Work

The U.S. Court of Appeals for the Second Circuit1 recently reiterated that employers may be obligated under the Americans with Disabilities Act (ADA) to accommodate requests by a disabled employee for assistance with her commute to work. Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental Hygiene, Case No. 10-cv-3317 (2d Cir. Aug. 10, 2011). The plaintiff in Nixon-Tinkelman was hearing impaired and suffered from cancer, heart problems and asthma. Her employer, the New York City Department of Health and Mental Hygiene (DOHMH), reassigned her to work for nine months in Manhattan, rather than Queens, where she previously had been assigned. She requested that DOHMH assist her with her commute to Manhattan during this time. The district court granted summary judgment to DOHMH, finding that "commuting falls outside the scope of the plaintiff's job, and is thereby not within the province of an employer's obligations under the ADA and Rehabilitation Act." The Second Circuit reversed, stating that its prior decisions2 establish that "there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work."

Remanding the case, the Second Circuit instructed the district court to analyze whether it would have been reasonable for DOHMH to "provide assistance related to Tinkelman's ability to get to work." The court listed several examples of accommodations that "should have [been] considered" by the lower court (and, by implication, the employer), given that the plaintiff had "worked for many years in a more suitable location": (1) transferring the plaintiff back to Queens or another closer location; (2) allowing the plaintiff to work from home; or (3) providing the plaintiff with a car or parking permit.3

The Second Circuit also suggested a non-exclusive list of factors for evaluating the reasonableness of the possible accommodations, such as:

The number of employees employed by DOHMH; The number and location of its offices; Whether other available positions existed for which the plaintiff showed she was qualified; Whether the plaintiff could have been shifted to a more convenient office without unduly burdening DOHMH; and Whether it would be reasonable for the plaintiff to work without on-site supervision. The Current Trend Among Circuit Courts

While several circuit courts have held that commuting falls outside the scope of employers' obligations under the ADA,4 the Nixon-Tinkelman case marks the latest and perhaps most far-reaching foray by a federal appeals court suggesting otherwise: in some cases, it may in fact be reasonable for an employer to accommodate commute-related requests – especially if changes in shifts or assignments are at issue.

In 2010, the Third Circuit5 ruled 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.6 In Colwell v. Rite Aid Corp., the plaintiff, a...