By Ted Olsen
In a case that could make landmark law, the Second Circuit Court of Appeals recently ruled that an employer may, depending on the circumstances, be obligated to make reasonable accommodation for a disabled employee's commute to and from work. Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene, No. 10-3317-cv (2d Cir. Aug. 10, 2011). The decision reversed a lower federal court decision that an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job.
In Nixon-Tinkelman, the plaintiff - who has a hearing impairment, cancer, heart problems and asthma - was transferred from Queens to Manhattan for 13 months, during which she complained about problems associated with her commute. The Second Circuit held that possible accommodations for her may have been "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit." The Court's reference to the accommodation of working from home deviated from traditional disability accommodation law.
The Court of Appeals did not declare an absolute legal duty to accommodate the commute of a disabled employee. Instead, on a case-by-case basis, the burdens to the employer must be considered. "On remand, the district court shall consider factors such as the number of employees employed by DOHMH, the number and location of its offices, whether other available positions existed for which Tinkelman showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening DOHMH's operations, and the reasonableness of allowing her to work without on-site supervision."
Ironically, a more conventional failure to accommodate claim raised by Ms. Tinkelman was rejected by the Second Circuit. She asserted that she should have been given a special telephone or device for the hearing impaired while she worked in the Manhattan office. However, she did not make a specific request for this equipment, and the employer's willingness to make reasonable accommodation for her hearing impairment previously had been demonstrated by it providing her with and reimbursing her for an amplification device and another special telephone.
The case was filed under the Americans with Disabilities Act, and Sections 501 and 504 of the Rehabilitation Act.
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©2011 Sherman & Howard L.L.C. September 1, 2011