In Nixon-Tinkelman v. New York City Dep't of Health and Mental Hygiene (Aug. 10, 2011), the Second Circuit Court of Appeals held that under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, employers may be, depending on the circumstances, required to make reasonable accommodations for disabled employees' commute to and from work.
In this case, Plaintiff, who has cancer, heart problems, asthma, and is hearing impaired, brought suit under the ADA and the Rehabilitation Act alleging that Defendant failed to reasonably accommodate her disability. Specifically, following her transfer from Queens to Manhattan, Plaintiff complained about the over-60-minute commute via public transportation, and requested that Defendant accommodate her by transferring her back to an office location closer to her home in Queens. Defendant ultimately denied Plaintiff's request, claiming that commuting was outside of the scope of Plaintiff's job.
Although the Southern District of New York found that activities which "fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer's obligations under the ADA and the Rehabilitation Act," on appeal, the Second Circuit explained that certain circumstances may require an employer to provide commuting assistance to a disabled employee, and furthermore, that providing such assistance is not "inherently unreasonable."
While the Second Circuit did not declare that an employer has an absolute legal duty to accommodate the commute of a disabled employee, the Court remanded the case to the Southern District for a determination as to whether the requested accommodations were reasonable. The Court stated that because job performance relies on attendance, Defendant must consider measures that allow the disabled employee to get to and from work, including "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit."
The Court noted that Defendant should also "consider factors such as the number of employees employed by [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 [Defendant]'s operations, and the reasonableness of allowing her to work without on-site supervision."
If you are a disabled employee and your employer recently denied your request for a reasonable accommodation, it's crucial that you immediately consult with a New York City employment attorney to learn about, and preserve, all your legal rights.
