Unfortunately, the answer is – it depends. A recent case out of the U.S. Court of Appeals for the 10th Circuit says no, joining several other federal circuits, but the Equal Employment Opportunity Commission, the Job Accommodations Network, and yet other federal circuits say yes.
In Unrein v. PHC-Fort Morgan, a hospital dietician became legally blind and could no longer drive herself to work, instead having to rely on others for a ride for the 60 mile trip. She sought several accommodations, including a flexible work schedule and telecommuting. The hospital tried the flexible schedule, but it created issues since her physical presence was unpredictable. She was eventually terminated after her doctor placed her on an indefinite leave and she then sued for failure to provide reasonable accommodations under the Americans with Disabilities Act.
The Tenth Circuit rejected her claims. In addition to finding that an essential function of the dietician job required the employee’s physical presence on a set and predictable schedule in order to ensure patient care, the Tenth Circuit noted that the employee was seeking an accommodation for her transportation barrier, which the Tenth Circuit described as “a problem she faces outside the workplace unrelated to an essential job function or privilege of employment.” Accordingly, citing cases from the Sixth and Ninth Circuits, the Tenth Circuit found the employer had no obligation to accommodate her transportation barrier. The Tenth Circuit asserted that the employer cannot control where an employee chooses to live, whether public transportation is available, and whether her friends and family can give her rides; rather this was within the employee’s control.
Although this is good news for employers in at least the Tenth, Sixth and Ninth Circuits, employers should be warned that at least the Second and Third Circuits have reached the opposite conclusion – and the EEOC and JAN would specifically require such accommodation. Thus, employers should consult with counsel when dealing with a commuting accommodation request.