Employers recognize that they have a duty to reasonably accommodate employees with disabilities that substantially limit their ability to perform the essential functions of their job. But what about disabilities that limit their ability to get to work? Does the duty to accommodate extend to the commute? The Seventh Circuit recently tackled this issue and held, “maybe.”

In EEOC v. Charter Communications, 75 F.4^th 729 (7^th Cir. 2023), an employee who suffered from cataracts that made driving at night unsafe requested a modified work schedule that reduced his nighttime driving for the commute home. After granting his request on a trial basis, his employer refused to extend it, arguing that the requested accommodation was beyond the reach of the ADA because it did not relate to the employee’s ability to perform his job. The lower court agreed and dismissed the case.

The Seventh Circuit reversed, refusing to adopt a bright-line rule that an employer has no duty to accommodate a disability that relates to how an employee gets to work. It noted that a modified work schedule is a specific accommodation envisioned by the ADA, and that attendance is an essential job function. Thus, if commuting to work is a prerequisite to an essential job function (i.e., attendance), an employee may be entitled to a work-schedule accommodation if it is reasonable under all the circumstances.

In reaching this conclusion, the court made a number of observations that provide guidance to employers facing such requests:

• In the post-pandemic workplace, this issue only arises when physical presence in the workplace is an essential function of the job. [For further discussion of this issue, see, Remote Work as an Accommodation in the Post-Covid Workplace.]
• In most cases, getting to and from work is the responsibility of the employee, not the employer. 
• When the variables that make it difficult for the employee to travel to and from work are subject to the employee’s control – such as where the employee lives, the availability of public transportation, etc., they favor the employer (i.e., no duty).
• When the variables are controlled by the employer – such as work schedule, they favor the employee (i.e., possible duty).
• An employer generally has no duty to help an employee with the method and means of his commute to and from work (assuming it does not offer such help to employees without disabilities).
• An employee who has chosen to live far from the workplace or has failed to take advantage of other reasonable options, including public transportation, will rarely, if ever, be entitled to an employer’s help in remedying the problem.

What to make of all this? Although “bright-line” rules are always preferred, they rarely exist in practice. The court’s decision serves as an important reminder that issues like the duty to accommodate are never as easy as they may seem, and require dispassionate consideration of all the factors, including the needs of both the employer and employee, before a decision can be made. 

Questions? Contact attorney Alan Seneczko of our Oconomowoc office by email or at (262) 560-9696.