Third Circuit Says Accommodation May Include Shift Change That Assists with Commute to Work

In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work.  In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time employee’s schedule to day shift – because her monocular vision made it dangerous for her to drive at night – could be a reasonable accommodation under the ADA.  Colwell v. Rite Aid Corporation, 3d Circ., No. 08-4675, April 8, 2010.

In April 2005, Jeanette Colwell began employment as a part-time retail clerk at a Rite Aid store in Old Forge, Pennsylvania, generally working weekdays from 5:00 to 9:00 p.m.  A few months after she began working there, Colwell was diagnosed with “retinal vein occlusion and glaucoma,” which eventually left her blind in one eye.  In September 2005, Colwell informed her supervisor that the partial blindness made the drive to work at night dangerous and difficult for her, and asked to be switched to day (9:00 a.m. to 2:00 p.m.) shift so that she could drive to work safely.  Public transportation was not an option, because the buses stopped running at 6:00 p.m. in that area.  Colwell was told her shift would not be changed because it “wouldn’t be fair” to the other employees.  At that point, Colwell began to rely on relatives to drive her to work, even though she said it was a “hardship” for her family to do it. 

On October 12, 2005, after a number of unsuccessful attempts to have her shift changed to permanent day shift, Colwell wrote a letter of resignation to Rite Aid that stated that she felt that she had “not been given fair treatment.”  Rite Aid never responded to Colwell’s note.  A few months after leaving her position with Rite Aid, Colwell filed a lawsuit that included a claim that the company had failed to accommodate her disability by refusing to move her to the day shift. 

The district court granted summary judgment to Rite Aid on Colwell’s failure-to-accommodate claim, on the basis that Colwell “did not need an accommodation to perform her job once she arrived at work.”    The lower court found that the accommodation requested by Colwell “had nothing to do with the work environment or the manner and circumstances under which she performed her work,” and that the ADA only covers barriers “that exist inside the workplace.” 

The Third Circuit reversed that decision, disagreeing with Rite Aid’s position that Colwell’s difficulties amounted to a “commuting problem unrelated to the workplace.”  Instead, the Court found that the reach of the ADA is not limited in that way, and that changing Colwell’s work schedule to day shift was, in fact, the type of accommodation contemplated by the ADA.  The Court pointed to language within the ADA in which the term “reasonable accommodation” is defined to specifically include “modified work schedules,” and that what Colwell was requesting was, in essence, a schedule change.  The Court 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.”  Because Colwell’s requested accommodation was a change in workplace condition that was entirely within the company’s control, and would have allowed Colwell to get to work to perform her job, the Court found that the shift change could be viewed as a reasonable accommodation. 

Although in this case, the Court held that the ADA contemplates that an employer may need to modify an employee’s work schedule to accommodate that individual’s disability-related difficulties in getting to work, the employer is not precluded from asserting a defense that the re-scheduling may create an “undue hardship” or financial burden if, in fact, it does.   This case underscores the need for a full evaluation of an individual’s particular medical impairment to determine what aspects of employment are affected, the benefit of participating in the interactive process required under the ADA, and the need to review the employee’s request for accommodation in the broadest context possible to determine whether or not the request will assist the employee in the performance of his or her job.  Because this decision seems to expand employers’ obligations with respect to “reasonable accommodation,” it is worth following to see whether other courts of appeal rule consistently with the case. 

 
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