In a recent ADA case, Colwell v. Rite Aid Corporation, No. 08-4675, 2010 U.S. App. LEXIS 7249 (3d Cir. Apr. 8, 2010), the U.S. Court of Appeals for the Third Circuit reversed summary judgment for the employer and held that employers may need to make reasonable shift changes, allowing an employee with a visual impairment to work the day shift only in order to accommodate the employee’s disability-related difficulties in getting to work.

Jeanette Colwell was a former part-time cashier at Rite Aid. Ms. Colwell’s shifts at Rite Aid varied, but more often than not, she was scheduled to work weekdays from 5:00 PM to 9:00 PM. After she became blind in one eye, Ms. Colwell informed her supervisor that her partial blindness made it dangerous and difficult for her to drive at night. In response, the supervisor told Ms. Colwell that she could not be assigned to day shifts exclusively because it “wouldn’t be fair” to the other workers. Ms. Colwell provided her supervisor with a doctor’s note stating that the doctor recommended that Ms. Colwell not drive at night. The supervisor, nevertheless, informed Ms. Colwell that she was unwilling to assign Ms. Colwell day shifts only, and continued to schedule her for a mixture of day and night shifts. Ms. Colwell told her supervisor that her grandson would pick her up when he could but added that she could not always depend on others for a ride.

After a second conversation with her supervisor, Ms. Colwell discussed her desire to change to day shifts with her union representative. The union representative contacted Ms. Colwell’s supervisor to discuss the matter, and later informed Ms. Colwell that “he got nowhere.” While the union representative proposed and scheduled a meeting with Ms. Colwell and her supervisor, the supervisor failed to show up for that meeting. He said he would set up another meeting but Ms. Colwell was “too fed up at the time,” submitted her resignation by leaving her supervisor a handwritten note stating that she “had not been given fair treatment,” and gave Rite Aid two weeks’ notice.

Subsequently, Ms. Colwell sued Rite Aid, asserting that she was an employee with a disability whom the company failed to accommodate, and also claimed that she was the subject of retaliation, age discrimination, and a constructive discharge under the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act, and the Pennsylvania Human Rights Act (“PHRA”). Following discovery, both sides sought summary judgment from the federal district court. Rite Aid’s motion was granted, resulting in dismissal of the lawsuit.

On the reasonable accommodation issue, the District Court concluded that the accommodation that Ms. Colwell sought had nothing to do with the work environment or the manner and circumstances under which she performed her work and that Rite Aid had no duty to accommodate Ms. Colwell’s commute to work. In so holding, the District Court observed that “the ADA is designed to cover barriers to an employee’s ability to work that exist inside the workplace, not difficulties over which the employer has no control” and that imputing a duty to accommodate Ms. Colwell was tantamount to “mak[ing] an employer responsible for how an employee gets to work, a situation which expands the employer’s responsibility beyond the ADA’s intention.”

On appeal, with the support of the Equal Employment Opportunity Commission, Ms. Colwell argued that the District Court erred in dismissing her claims because Rite Aid had an obligation under the ADA to accommodate her with a shift change in deference to her disability and the limitations she confronted in commuting to work at night by reason of her partial blindness. A unanimous panel of the United States Court of Appeals for the Third Circuit agreed with Ms. Colwell and reversed the District Court’s summary judgment for Rite Aid on Ms. Colwell’s failure to accommodate claim. The panel 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 in a workplace condition that is entirely within an employer’s control and that would, as a result, allow the employee to get to work and perform her job. In so holding, the panel relied on the statutory language of the ADA, 42 U.S.C. § 12111(9)(B), observing that the accommodations listed in the statute are not exclusive and stating that Congress specifically contemplated workplace accessibility, noting that a reasonable accommodation can include a modified work schedule or adjustments to the work environment, including the manner or circumstances under which a position is customarily performed, which would enable an employee with disabilities to enjoy equal employment opportunities as are enjoyed by similarly situated employees without disabilities. Hence, the Court of Appeals ruled “as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.”

The Third Circuit panel additionally found support in Lyons v. Legal Aid Society, 68 F.3d 1512 (2d Cir. 1995), in which the Second Circuit held that a viable ADA claim could be stated based on an employer’s denial of an employee’s request for financial assistance to pay for a parking space close to work as an accommodation for her severe physical impairments. While taking no position on the Second Circuit’s observation that a reasonable accommodation could, possibly, include funds to pay for a disabled employee’s parking space adjacent to the employer’s business, the Third Circuit reasoned that there was nothing inherently unreasonable in requiring an employer to change an employee’s work schedule to day shifts only in order to alleviate her disability-related difficulties in getting to work. In this regard, too, the Third Circuit cited the ADA’s legislative history to the effect that “persons who may require modified work schedules are persons with mobility impairments who depend on a public transportation system that is not currently fully accessible.”

The Third Circuit found the District Court’s reasoning that a change in shifts had nothing to do with the work environment or the manner and circumstance under which Ms. Colwell performed her work “perplexing”. “The scheduling of shifts is not done outside the workplace but inside the workplace,” the Third Circuit stated. Therefore, the ADA contemplates that employers may need to make reasonable shift changes to accommodate a disabled employee’s disability-related difficulties in getting to work. The Third Circuit made it clear that its holding does not make employers responsible for how an employee gets to work and does not necessarily require Rite Aid to provide the shift change Ms. Colwell desired. Noting that Rite Aid made no factual argument about the reasonableness of Ms. Colwell’s request, nor had it argued that scheduling Ms. Colwell for day shifts would have been an undue hardship, the Court of Appeals left these questions to a jury.

The Third Circuit affirmed summary judgment for Rite Aid on Ms. Colwell’s other claims.

By its decision in Colwell, the Third Circuit joined the Second Circuit in holding that, in appropriate circumstances, the ADA may require an employer to reasonably accommodate a disabled employee with assistance related to her ability to get to work.