Reversing summary judgment for the employer, the Second Circuit said that “in certain circumstances, an employer may have an obligation to assist in an employee’s commute” to work as a reasonable accommodation. The Court cited its observation in an earlier decision 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.” Nixon-Tinkelman v. NYC Dep’t of Health and Mental Hygiene (Aug. 10, 2011).
At least four other circuit courts have taken the opposite view and held that the commute is not part of the work environment that an employer is required to reasonably accommodate. The EEOC also said in a 2001 informal discussion letter that “it is the employee’s responsibility to arrange how s/he will get to and from work” and that the ADA does not require an employer to provide commuting assistance as a form reasonable accommodation.
The Second Circuit remanded the case and directed the district court to consider whether defendants could have reasonably accommodated plaintiff’s needs by transferring her back to her prior worksite or another closer location, allowing her to work from home, or providing a car or parking permit. The Court provided a non-exclusive list of factors for the district court to evaluate in making this determination. They included the number of employees employed by the defendant, the number and location of its offices, whether other available positions existed for which plaintiff showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening the defendant’s operations, and the reasonableness of allowing her to work without on-site supervision.
Employers within the Second Circuit and in other Circuits which have not addressed the issue should be cautious when presented with a request for commuting assistance. While this conflict in the circuits may wend its way to the United States Supreme Court, that may take years and until then, the law of the circuit in which the case is pending applies.