By William Wiley

One of the confusing areas of disability accommodation law is the issue of how far does an agency have to go to accommodate a disabled employee who cannot travel to the workplace each day to do his job. A major reason that this is confusing is that several federal courts have reached a conclusion different from that of EEOC. According to the rationale of some circuits, if the employee cannot get herself to the workplace, she does not meet the definition of “qualified” because commuting to work is an “essential function” of every position. Therefore, the employer need do nothing regarding the accommodation of her commuting problem. On the other hand, EEOC has taken the position that the ability to commute to work is NOT an essential function of many positions, and that therefore a government agency DOES INDEED have to attempt to accommodate the commuting problems caused by an employee’s disabilities.

EEOC’s approach causes significant problems for the federal employer. When confronted with a demand for accommodation of a commuting limitation from a disabled employee, the agency has to prove that the accommodations required regarding commuting are not possible (are an “undue hardship” if you’re in to exacting legal language). If the employee’s work can be done primarily from his home, then part-time or full-time flexiplace often is the accommodation that satisfies EEOC’s expectations.

But what about the situation in which there is no claim that the employee has to physically be at the worksite to get the job done? If the guy can’t drive, walk, or take public transportation, does the agency have to send a driver to transport him from home to work?

Fortunately, we now know that the answer is “no.”

In a recent case, EEOC had to deal with a complaint in which the disabled employee claimed a right to accommodation of his commuting problems caused by a constellation of medical infirmities when his agency changed his work location two days a week to a facility 30 miles away:

  • Sleep apnea
  • Spinal cord injury
  • Monocular vision
  • Carpal tunnel syndrome

When the agency failed to accommodate the employee’s disability, EEOC found no disability discrimination based on the following:

  1. The change in work locations was based on legitimate management reasons.
  2. Non-disabled employees were adversely affected by the change as well as was the disabled complainant.
  3. The agency considered the complainant’s accommodation requests “seriously and timely.”
  4. The agency need not provide a driver for the complaint to commute twice a week because doing so would require the expenditure of funds not provided for by Congress. Federal agencies are not permitted to use appropriated funds to get an employee to work. Describing the complainant’s commuting costs as personal expenses, the Agency asserted that they were not payable from appropriated funds, absent specific statutory authority and it relied on 17 Comp. Gen. 1 (1947); 16 Comp. Gen. 64 (1936). The Agency also argued that 31 U.S.C. § 1344(a)(1) limited the use of appropriated funds for passenger vehicles to “official purposes.”

More broadly stated, the Commission held specifically that the agency “had no responsibility to provide transportation to Complainant for his commute.” Perhaps EEOC has held this before. However, it cites to no specific prior holding directly on point, and this may be the first time it has so held. For those of you in the business of dealing with employee requests for disability accommodation involving their commute, this one might be a decision worth remembering: Gerald L. v. DVA, EEOC No. 0120130776 (2015). Wiley@FELTG.com

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