REASONABLE ACCOMMODATIONS FOR DISABLED COMMUTERS
MEMBER ALERT! Disabled employees now have a little more reason to expect that their employer may be required to help them commute to and from work when their disability makes that very difficult or impossible. One U.S. Circuit Court of Appeals just instructed a lower court that the right to a reasonable accommodation can extend to commuting to and from the job. Generally, courts have not done that.
In the case before it, an employee was temporarily reassigned from an office in Queens, NY to one in Manhattan, NY. She asked the employer for help getting to and from work because her cancer, asthma, hearing loss and heart problems made it virtually impossible to get to the new location. The employer refused, only to have the court suggest that it consider reassigning the employee back to Queens, allowing her to work from home, and providing her with a car and parking permit. The court felt that one or all of these might be reasonable. Under the law, if one or more does not cause an “undue hardship” on the employer, it is obligated to offer the accommodation.
Other courts have reached similar conclusions when the employer requires employees who cannot drive at night to commute during the hours of darkness. The courts have suggested shift changes, but FEDSMILL can see them also asking about allowing the employee to work at home for certain hours or arranging carpool assistance.
If you have a disability that makes commuting very difficult or impossible, especially if you have worked successfully for the employer before the commuting conditions changed, talk to the union representative about what reasonable accommodation you need to overcome the commuting problems. You can ask the rep to make the request on your behalf or have the union steward go with you to make it. Should your request be denied, the union can help you rebut the employer’s assertion that what you want would create an undue hardship for it. If the employer had total control over the change in the commuting conditions, at least one court considers that relevant. This would include situations where the employer reassigned the employee, relocated its operations, changed shifts such that public transportation is no longer available, etc.
While you can take the case yourself to the EEOC, most union contracts permit the union to take the matter through the grievance procedure to arbitration if your request is denied.
If you know of a co-worker who could use this information, pass it on.
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