Two recent U.S. Court of Appeals decisions clarify that employers may need to accommodate employees' disability-related difficulties in commuting to work. In Colwell v. Rite Aid Corporation, 602 F.3d 495 (3rd Cir. 2010), the Third Circuit 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.” In this case, an employee’s partial blindness made it difficult for her to drive to work at night. However, the company refused to schedule her on day shifts, explaining that it “wouldn’t be fair” to other workers. The employee resigned and brought suit against the employer for violating the ADA.

The court noted that, under the ADA, an employer discriminates against an employee by not providing reasonable accommodations for the employee’s physical or mental limitations, unless the employer demonstrates that the accommodation would impose an undue hardship on the employer’s business. The term “reasonable accommodation” includes:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (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.

The court observed that the accommodations listed in the ADA are not exclusive. Reasonable accommodations may address problems that an employee has outside the workplace, if the accommodations enhance workplace accessibility for the employee. Therefore, the court denied the employer’s request for summary judgment on the employee’s ADA claim, and held that a jury must decide whether the employee’s requested accommodation was reasonable under the circumstances.

In Livingston v. Fred Meyer Stores, Inc., No. 08-35597, 2010 WL 2853172 (9th Cir. July 21, 2010), the Ninth Circuit also held that “an employer has a duty to accommodate an employee’s limitations in getting to and from work.” As in Colwell, the employee in this case could not drive after dark due to her vision impairment. In 2005, the employer granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the employer denied her same request in 2006, the employee refused to work her scheduled shift. She was subsequently terminated and brought suit against the employer for violation of ADA.

The court disagreed with the employer’s arguments that its duty to provide reasonable accommodations did not extend to “commute-related activities.” Citing the decision in Colwell, court denied the employer’s request for summary judgment on the employee’s ADA claim. The court also noted that the employer failed to satisfy its duty under the ADA to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. This interactive process is triggered by an employee’s request for accommodation or an employer's recognition of the need for accommodation.

The lesson of Colwell and Livingston for employers is that, under the ADA, they have a duty to provide reasonable accommodations for its employees' disability-related commuting difficulties. Accommodations may include part-time or modified work schedules, or other adjustments to enhance workplace accessibility for the employee. Under the ADA, employers have the duty to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. Employers should remember, however, that they do not need to provide a reasonable accommodation if doing so would impose an undue hardship on their business. An undue hardship exists when an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employers’ business.