Reasonable Accommodation for disabilities is (still and always) a hot topic. In response to my article in September’s Newsletter (Is it Just Me, or is Reasonable Accommodation Becoming Trickier?) I received a follow-up question. So let’s continue the discussion.
Dear Ms Hopkins,
I read your guidance on reasonable accommodation with great interest (as always), and saved it for future reference.
However, I was surprised you did not address the possibility that the arrangement to work from office A had been made to facilitate a shorter commute. In my experience, a request to work from Office A instead of B, usually has a lot more to do with a preferred commute than a disability related to the duties of the position.
At my agency, we have had two recent “commute-driven” requests for reasonable accommodation, supported by quite flimsy medical documentation. In considering these cases, I had been working under the assumption that (irrespective of their medical documentation) we do not accommodate HOW someone gets to work, but just the duties of the position once they arrive….
Would you mind adding your comments on our responsibilities with regards to commuting?
Here’s my response (not legal advice – just my thoughts).
Hello FELTG Reader,
Thanks for the follow-up question.
Let’s tackle the documentation issue first. If an employee refuses to provide medical documentation related to a disability, then the employee has essentially waived his right to reasonable accommodation (RA) because he has failed to participate in the interactive process. See Akbar v. U.S. Postal Service, EEOC No. 0120081202 (EEOC OFO 2011).
Now on to the commute question. There’s some conflict when it comes to commuting and reasonable accommodation; the courts generally say that employers are not required to accommodate issues related to the employee’s commute but EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” Complainant v. HUD, EEOC No. 0720130029 (EEOC OFO 2015). In this HUD case, the EEOC said the agency denied the complainant RA when it refused to allow him to telework and/or work one day a week in an office nearer to his home than the office to which he was assigned. In this case the EEOC said that commuting is a major life activity, and that because of the complainant’s spinal condition the agency was required to accommodate his physical inability to commute the longer distance to the office.
Contrast that with the case Bill discussed in March (Accommodating the Disabled Commuter), where the complainant was requesting the agency provide him with a car and driver – an accommodation that directly opposed what Congress has said about commuting being a personal expense. Gerald L. v. DVA, EEOC No. 0120130776 (2015). In that case the EEOC reiterated that, and said the VA was not responsible to get the employee to and from work. In addition, the complainant had to be at the physical location to perform the essential functions of his job. This is fairly different than the HUD case above, where the complainant could perform the essential functions of his position in a different location, and never asked the agency to pay for a driver.
I agree that sometimes (too often, probably) the request for a different work location is tied more to convenience than actual disability, but it needs to at least be considered as a potential accommodation during the interactive process – after you get medical documentation.
So no, you do not need to accommodate the method of how the employee gets to work but you do need to consider whether they HAVE to be at the worksite to which they’re assigned. The conservative line of action here would be, after receiving appropriate medical documentation, to consider each employee’s requests and consider whether they can perform the essential functions of the position from home or perhaps at a closer office. If they can, that solution would be a potential reasonable accommodation – but if other accommodations are available, the agency is free to choose another option. As long as you have a legitimate, nondiscriminatory reason (a business-based reason) that the employee needs to be at the main worksite, and can show that if they are not there it creates an undue hardship, you don’t have to grant the request for a different work location as an accommodation.
I hope this helps – as you know each RA request is a unique situation and must be looked at independently. Please let me know if you have any other questions.
Let’s keep the discussion going! What’s next? Hopkins@FELTG.com