*Melissa Bosley
The Americans with Disabilities Act requires that employers make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual.”[1] At times, qualified individuals with disabilities may find physically commuting to the job site difficult. For example, an employee with a vision-distorting condition may require magnifying equipment to successfully complete her job functions,[2] yet even when the employer provides her magnifying equipment, the employee still must commute to work.[3] The employee cannot drive herself to work because her vision is distorted and her driving would be unsafe.[4] In a world after the COVID-19 pandemic, a time when remote work became normalized and return-to-office mandates made headline news, employees with disabilities face a new question: does the employer have to make accommodations for an employee’s commute to work?[5]
I. Equal Employment Opportunity Commission v. Charter Communications.
In 2023, the Seventh Circuit considered the question whether “an employee whose disability made it difficult to commute safely to his workplace . . . was entitled to a modified work schedule.”[6] The court answered with a resounding “maybe[.]”[7]
The employee in question was James Kimmons, who developed cataracts in both his eyes and found it difficult to see in the dark, which made driving unsafe at night.[8] Mr. Kimmons requested assignment to an earlier work schedule “to reduce his nighttime driving for his long drive home from work.”[9] His employer, Charter Communications (Charter), “granted his first request for a thirty-day change but denied his request to extend the schedule[‘s duration].”[10] The Equal Employment Opportunity Commission filed suit on behalf of Mr. Kimmons, “[a]lleging that Charter unlawfully failed to accommodate Kimmons’ disability.”[11] The lower court granted summary judgment to Charter because “the employer had no obligation to accommodate Kimmons’s commute because his disability did not affect his ability to perform an essential function of his job once he arrived at the workplace.”[12]
In Mr. Kimmons’s case, the Seventh Circuit declined to “adopt a bright-line rule to the effect that an employer never has a duty of reasonable accommodations under the ADA regarding how its employees with disabilities commute to work.”[13] Instead, the court stated “commuting to work is a prerequisite to an essential job function . . . and if the accommodation is reasonable under all the circumstances” then the “employee may be entitled to a work-schedule accommodation.”[14] The Seventh Circuit noted that the Second, Third, Sixth, and Tenth Circuits all handled questions similar to Mr. Kimmons’ case. Still, the Second and Third Circuit found in favor of employees seeking accommodations, and the Sixth and Tenth Circuits found in favor of employers seeking to not provide accommodations.[15]
The Seventh Circuit made two helpful observations after examining all these cases together. “First, where a disability makes it difficult for an employee to travel to and from work safely, the employee usually controls some key variables, most important where the employee lives, but the employer controls another key variable, the work schedule,” and “[s]econd, . . . an employer has no duty to help an employee with a disability [who has] the method and means of his commute to and from work . . . .”[16] The Seventh Circuit ultimately determined Mr. Kimmons’ request for an extension of his modified work schedule could have been deemed reasonable by a jury.[17]
II. Unrein V. PHC-Fort Morgan.
In contrast to the Seventh Circuit, the Tenth Circuit decided a case in 2021 determining that the accommodations requested by an employee, Joan Unrein, who “became legally blind and could no longer drive herself to work,” did not require the hospital where Ms. Unrein worked to “accommodate employees’ non-work related barriers created by personal lifestyle choices.”[18]
Ms. Unrein developed a disease that made it difficult for her to perceive motion without magnifying equipment.[19] Because of Ms. Unrein’s disease, she could not drive herself to work, and she could not secure a ride service or public transportation. Ms. Unrein had to rely on her friends and family for rides.[20] Ms. Unrein’s friends and family would either be unavailable to take her to work, or would “back out at the last minute.”[21] The hospital expected “that Unrein [would] work at least thirty-two hours per week, the majority of which should be performed on-site . . . .”[22] The hospital attempted to work with Ms. Unrein and offered a flexible schedule, but “Unrein’s failure to be physically present at the hospital on a set and predictable schedule” led to complaints and “low patient satisfaction scores.”[23]
After the flexible schedule arrangement ended, Ms. Unrein asked the hospital to reinstate her accommodations, and then “amended the request by asking to telecommute full-time.”[24] The hospital denied her request because “at minimum, [Unrein’s] position requires over four hours of in-person face-to-face interactions per day, and Unrein’s request . . . would eliminate all in-person face-to-face interactions.”[25] Although the court did not consider the hospital’s reason for requiring Ms. Unrein to have four hours of face-to-face interactions per day, the court deferred to the employer’s judgment regarding the hospital’s business needs.”[26]
The Tenth Circuit held that Ms. Unrein’s inability to reliably commute to the hospital on a regular schedule meant that Ms. Unrein could not perform “an essential job function,” and “[t]he ADA does not require the [hospital] to accommodate Unrein’s transportation barrier . . . .”[27] The court determined the flexible schedule request “sought relief from physical presence at the hospital on a set and predictable schedule, which is an unreasonable accommodation as a matter of law” and “transportation to and from work is not an essential function of [Unrein’s] position.” Unlike the Seventh Circuit, the Tenth Circuit held Ms. Unrein “alone ha[d] the power to eliminate her transportation barrier.”[28]
III. A Note on the COVID-19 Pandemic.
Accommodations such as remote work reduced the need to commute in many industries during the COVID-19 pandemic.[29] The Seventh Circuit noted in Charter Communications that “[d]uring the COVID-19 pandemic, of course, many employers and tens of millions of employees found ways to accomplish work without having many employees physically present at the workplace.”[30] The Seventh Circuit did not consider whether physical presence is an essential job function; however, the Tenth Circuit deferred to the employer to determine the necessity of physical presence at the workplace.[31] The COVID-19 pandemic required industries to pivot to remote work when possible.[32] The Seventh and Tenth Circuit leave those with disabilities in a grey area regarding if industries should similarly be forced to pivot to accommodate those with disabilities.[33]
IV. Conclusion
There is a clear split in the Federal Circuit Courts regarding whether an employer is required to accommodate an employee who experiences difficulty commuting to work because of the employee’s disability.[34] Mr. Kimmons and Ms. Unrein were similarly situated litigants; however, different circuits applying the same ADA standard required a flexible work schedule accommodation for one litigant and denied a flexible work schedule for the other.[35] The circuit courts decided both cases after the COVID-19 pandemic, following society’s substantial shift toward accommodating remote options for work.[36] Despite increased prevalence of remote work over the past several years,[37] employees with disabilities do not know if the ADA requires their employers to make disability accommodations for the employees’ commute.[38] The Supreme Court or Congress can demystify when employers are obligated to make commute related accommodations.
*Melissa Bosley is a second-year, evening student at the University of Baltimore School of Law, where she is a Staff Editor of the Law Review and a UB LEADs mentor. Melissa received her undergraduate degree in Legal Studies from Stevenson University and then began working full time as an estates & trusts paralegal in 2019. She currently works as the Executive Paralegal at Jim Rutledge Esq LLC in Bel Air, Maryland.
[1] 42 U.S.C.A. § 12112(b)(5)(A) (2009).
[2] Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 875 (10th Cir. 2021).
[3] Id.
[4] Id. at 874.
[5] See infra notes 6–7 and accompanying text.
[6] Equal Emp. Opportunity Comm’n v. Charter Commc’ns, 75 F.4th 729, 731 (7th Cir. 2023).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 731–32.
[14] Id. at 732.
[15] See id. at 735–39.
[16] Id. at 738.
[17] Id. at 742.
[18] Unrein v. PHC-Fort Morgan, Inc. 993 F.3d 873, 874 (2021).
[19] Id. at 875.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 877 (citing Mason v. Avaya Commc’ns. Inc., 357 F.3d 1114, 1119 (10th Cir. 2004)).
[27] Unrein, 993 F.3d at 879.
[28] Id. at 878–79.
[29] See Chris Gilligan, How the Pandemic Boosted Working from Home, U.S. News and World Report (May 18, 2023, 2:45PM) https://www.usnews.com/news/health-news/articles/2023-05-18/how-the-covid-pandemic-impacted-working-from-home (showing that the percentage of Americans working from more than tripled from 2019 to 2021).
[30] Equal Emp. Opportunity Comm’n v. Charter Commc’n, 75 F.4th 729, 732 (7th Cir. 2023).
[31] Compare Equal Emp. Opportunity Comm’n, 75 F.4th at 732 with Unrein 993 F.3d at 877.
[32] See Ability to Work from Home: Evidence from Two Surveys and Implications for the Labor Market in the COVID-19 Pandemic, U.S. Bureau of Lab. Stat. (June 2020) https://www.bls.gov/opub/mlr/2020/article/ability-to-work-from-home.htm (stating that approximately 31% of workers that were employed in March 2020 switched to working from home by April 2020).
[33] Compare Equal Emp. Opportunity Comm’n, 75 F.4th at 732 with Unrein 993 F.3d at 877.
[34] See Equal Emp. Opportunity Comm’n, 75 F.4th 729; Regan v. Faurecia Auto. Seating, Inc., 6749 F.3d 475 (2012); Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873 (2021); Colwell v. Rite Aid Corp., 602 F.3d 495 (2010); Lyons v. Legal Aid Soc., 68 F.3d 1512 (1995).
[35] Compare Equal Emp. Opportunity Comm’n, 75 F.4th at 743 with Unrein, 993 F.3d at 879.
[36] See Gilligan, supra note 29; see also Ability to Work from Home: Evidence from Two Surveys and Implications for the Labor Market in the COVID-19 Pandemic, supra note 32 (showing the increase in remote work from 2019 to 2020 with a notable increase from March 2020 to April 2020).
[37] See infra notes 29 and 32 and accompanying text.
[38] See infra notes 34–36 and accompanying text.
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