Employers May Need to Accommodate Employees' Disability-Related Difficulties in Commuting to Work

Two recent U.S. Court of Appeals decisions clarify that employers may need to accommodate employees' disability-related difficulties in commuting to work. In Colwell v. Rite Aid Corporation, 602 F.3d 495 (3rd Cir. 2010), the Third Circuit held that “under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable.” In this case, an employee’s partial blindness made it difficult for her to drive to work at night. However, the company refused to schedule her on day shifts, explaining that it “wouldn’t be fair” to other workers. The employee resigned and brought suit against the employer for violating the ADA.

The court noted that, under the ADA, an employer discriminates against an employee by not providing reasonable accommodations for the employee’s physical or mental limitations, unless the employer demonstrates that the accommodation would impose an undue hardship on the employer’s business. The term “reasonable accommodation” includes:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The court observed that the accommodations listed in the ADA are not exclusive. Reasonable accommodations may address problems that an employee has outside the workplace, if the accommodations enhance workplace accessibility for the employee. Therefore, the court denied the employer’s request for summary judgment on the employee’s ADA claim, and held that a jury must decide whether the employee’s requested accommodation was reasonable under the circumstances.

In Livingston v. Fred Meyer Stores, Inc., No. 08-35597, 2010 WL 2853172 (9th Cir. July 21, 2010), the Ninth Circuit also held that “an employer has a duty to accommodate an employee’s limitations in getting to and from work.” As in Colwell, the employee in this case could not drive after dark due to her vision impairment. In 2005, the employer granted her request for a modified work schedule during the fall and winter months to minimize her driving at night. When the employer denied her same request in 2006, the employee refused to work her scheduled shift. She was subsequently terminated and brought suit against the employer for violation of ADA.

The court disagreed with the employer’s arguments that its duty to provide reasonable accommodations did not extend to “commute-related activities.” Citing the decision in Colwell, court denied the employer’s request for summary judgment on the employee’s ADA claim. The court also noted that the employer failed to satisfy its duty under the ADA to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. This interactive process is triggered by an employee’s request for accommodation or an employer's recognition of the need for accommodation.

The lesson of Colwell and Livingston for employers is that, under the ADA, they have a duty to provide reasonable accommodations for its employees' disability-related commuting difficulties. Accommodations may include part-time or modified work schedules, or other adjustments to enhance workplace accessibility for the employee. Under the ADA, employers have the duty to interact with employees to identify and implement appropriate reasonable accommodations for the employee’s disability. Employers should remember, however, that they do not need to provide a reasonable accommodation if doing so would impose an undue hardship on their business. An undue hardship exists when an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employers’ business.



Sixth Circuit Declines to Follow Department of Labor's Interpretation of Clothes and Safety Equipment

On June 8, 2010, Roetzel provided an update regarding the Department of Labor’s (DOL) Administrative Interpretation that time spent changing safety equipment must be compensated if it is required by law, by rules of the employer, or by custom. Section 203(o) of the Fair Labor Standards Act permits employers not to pay employees for time spent changing “clothes” if payment is excluded under the terms of a collective bargaining agreement or barred by the custom or practice. The DOL’s Administrative Interpretation determined that protective equipment is not “clothes” under this exception.

On August 31, 2010, the U.S. Court of Appeals for the Sixth Circuit, which sits above the federal courts in Ohio, issued its opinion in Franklin v. Kellogg Company. This case dealt with the claims of Kellogg plant workers seeking payment for time spent changing food safety uniforms and protective equipment and for time spent walking to and from the changing area. Kellogg required its employees to wear company-provided uniforms consisting of pants, snap-front shirts, slip resistant shoes, hair nets, beard nets, safety glasses, ear plugs and bump caps. Kellogg required employees to change into their uniform and equipment upon arriving at the plant and to change into their regular clothes prior to leaving the plant so that the uniform and equipment could be washed at the plant.

There are several significant portions of the Sixth Circuit’s decision. First, it determined that § 203(o) is an exclusion and not an exemption. § 230(o) excludes changing clothes from compensable time under the Fair Labor Standards Act. The significance of this determination is that an exclusion leaves the burden of proof with the plaintiff and an exemption shifts the burden of proof to the employer.

More significant is that the Sixth Circuit did not afford the DOL’s June 16th interpretation any deference or weight. The Sixth Circuit stated, “The DOL’s position on this issue has changed repeatedly in the last 12 years, indicating that we should not defer to its interpretation. Additionally, we find its interpretation to be inconsistent with the language of the statute.” The Sixth Circuit ruled that the District Court’s decision granting judgment in favor of Kellogg on plaintiffs’ claims for compensation for time spent changing into the uniform and equipment was correct. It must be noted that this ruling was based on evidence that Kellogg had a custom or practice of not paying for the time spent changing clothing under a bona fide collective bargaining agreement.

The Sixth Circuit’s decision, however, was not completely employer-friendly. The Sixth Circuit determined that under the continuous workday rule, plaintiffs may be entitled to payment for pre- and post-changing and pre-donning walking time to the time clock and/or their work stations. The Court determined that changing into the uniform and equipment was an integral and indispensable part of the job. It did so because Kellogg required the activity and wearing the uniform and equipment primarily benefits Kellogg. The Court noted that the employees do receive protection from physical harm by wearing the equipment, but Kellogg received the primary benefit because the uniform and equipment ensure sanitary conditions and untainted food products.

The lesson from this decision is that the DOL’s Interpretation requiring employers to compensate employees for changing clothes if it is required by law, by rules of the employer, or by custom will not be afforded any deference or weight by the federal courts in Ohio. Whether employees must be compensated for time immediately preceding and proceeding changing of clothes depends on 1) whether the changing of clothes is required by the employer; 2) whether the activity is necessary for the employee to perform his or her duties; and 3) whether the activity primarily benefits the employer.

Author: Jon Secrest