By Eric B. Meyer
Let’s say you have an employee with narcolepsy. This employee has been working for you for years with no issue.
But business needs changed and you reassign this narcoleptic employee to a new shift. Shortly thereafter, the employee comes into HR and requests a shift change. Your response is take FMLA or quit.
Have you violated the Americans with Disabilities Act by failing to accommodate the shift-change request?
Undue hardship on the business?
Recognizing that the ADA requires employers to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, the court also underscored that the ADA draws the line where an accommodation request would impose an undue hardship on the operation of the business.
Section 12111(9) of the Americans with Disabilities Act defines “reasonable accommodation” to include:
(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.”
I see “modified work schedules” in there. However, there’s work schedules. And then there’s work commute schedules.
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Courts ruling against accommodating the commute
Most courts (like this, that, and this other one) have found that the ADA does not require an employer to accommodate an employee’s commute. The Sixth Circuit agreed and found that the ADA does not require an employer need not accommodate an employee’s request for a commute during more convenient hours.
However, for my Pennsylvania and New Jersey employers, listen up. As Jon Hyman notes at the Ohio Employer’s Law Blog, the Third U.S. Circuit Court of Appeals in Philadelphia reached a different result in this 2010 decision, holding that “changing [a] working schedule to day shifts in order to alleviate…disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.”
As Jon wisely noted in his post, “[e]mployees with medical conditions that impede their ability to do their jobs raise a huge red flag. Before summarily denying a reasonable accommodation, you should be consulting with counsel to make sure that you are not stepping into a lawsuit.”
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.