A new unpublished opinion from the United States Court of Appeals for the Second Circuit reminds employers that requests by disabled employees for assistance with their commute to work are not inherently unreasonable under the Americans with Disabilities Act (“ADA”). An employer has an affirmative obligation to examine whether a reasonable accommodation exists that could assist an otherwise qualified disabled employee with his or her commute to work.
In Nixon-Tinkelman v. N.Y. City Dep't of Health & Mental Hygiene, the Second Circuit revived a claim by a municipal employee who alleged that her employer had failed to provide her with a reasonable accommodation by not assisting her with getting to work. The lower court previously dismissed the claim reasoning that commuting fell outside the scope of the plaintiff's job and was thereby not within the province of an employer's obligations under the ADA. The Second Circuit, however, disagreed and ruled 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." According to the Court, depending on the circumstances, “an employer may have an obligation to assist in an employee's commute.”
This case was ultimately remanded back to the lower court for a determination as to whether it would have been reasonable for the employer to provide assistance under the specific facts. The Second Circuit provided the district court with additional guidance suggesting that it consider whether defendants could have reasonably accommodated the employee’s needs “simply by transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit.” In addition, the lower court was asked to consider factors such as the number of employees employed by the employer, the number and location of its offices, whether other available positions existed for which the plaintiff was qualified, whether she could have been transferred to another office without unduly burdening the employer’s operations, and the reasonableness of allowing her to work without on-site supervision.
This case highlights for employers the importance of being an active participant in the ADA’s interactive process and reinforces the notion that no request should automatically be considered “off limits” or dismissed without first performing a reasonableness analysis. While an employer does not have to provide a reasonable accommodation that would cause an “undue hardship,” determining whether a proposed request meets that standard normally involves a fact-sensitive inquiry. As suggested by the Second Circuit, employers should consider providing a disabled employee with transportation or a transfer to another work location under certain circumstances. Employers should not only engage in the interaction process, they should document their analysis and communications on the subject.