Tuesday, September 13, 2011

2nd Circuit Holds Employer May Have Duty to Accommodate Employee's Commute To and From Work

In a potentially landmark case, the Court of Appeals for the Second Circuit had held that, under certain circumstances, an employer may have a duty to accommodate an employee in their commute to and from work.  The Court reversed the lower court's decision that held an employer has no legal duty to accommodate a worker's commute, as the commute is "outside the scope" of the employee's job.  The plaintiff 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 2nd 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 did say, as has always been the case with disability discrimination claims as it relates to the employer's duty to accommodate, that accommodating the commute turns on a case-by-case basis.  Upon remanding the case back to the lower court, the 2nd Circuit stated:
"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."
Interestingly enough, the Court rejected the plaintiff's suggestion for an accommodation of a special telephone or device for the hearing impaired while she worked in the Manhattan office.

The case is Nixon-Tinkelman v. N.Y.C. Dept. of Health & Mental Hygiene,No. 10-3317-cv (2d Cir. Aug. 10, 2011)

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