In tort law, there such a thing as the coming and going rule. That is, if an employee acts negligently while commuting to work or coming from work, the employer is not liable for those actions. The Internal Revenue Service has a similar rule. That is, you can’t take off your mileage when you are commuting to and from work. Would the same rule apply with respect to the duty to accommodate under the Americans With Disabilities Act?
In one of the blogs in my blogroll, I believe it was labor and employment law (not tx), there was a case whereby the Second Circuit Court of Appeals held that the duty to accommodate could expand to a person getting to and from work. In light of the rules in the first paragraph that seemed a little bit odd. Therefore, I went ahead and read that case, Nixon-tinkelman v. New York City Department of Health and mental hygiene, 434 federal appendix 17 (a decision not published in the federal reporter), but it turns out that there is little independent reasoning in that case. Basically, that case says they are relying on Lyons v. legal aid Society, 68 F.3d 1512 (second Cir. 1995). Therefore, I read the Lyons case and it is that case that we will talk about here.
In Lyons, an attorney who worked for legal aid Society of New York was severely injured upon leaving her parked car. As a result of those injuries, she underwent multiple surgeries. She was eventually able to return to work, though she had to use walking devices, wear a brace on her left knee, could not stand for extended periods, and could not climb or descend stairs without difficulty. She was simply unable to walk long distances either at one time during the course of a day and her general physical stamina was significantly less than normal. Before returning to work Lyons asked legal aid to accommodate her disability by paying for parking space near office and the courts in which she would practice. She said that she would not be able to take public transportation because such commuting require her to walk distances, climb stairs, and on occasion remain standing for extended periods of time thereby overtaxing her limited physical capabilities. Her physician provided legal aid a letter that said that the parking space was necessary to enable her to return to work. Legal aid informed her that they would not pay for parking space. Accordingly, Lyons spent $300-$520 a month (1990s dollars) representing 15 to 22% of her monthly net salary for a parking space adjacent to her office building. Legal aid claimed that it did not provide parking assistance for commuting to non-disabled employees and therefore accommodating Lyons in that way would be outside the scope of the federal disability statutes (Americans with Disabilities Act and rehabilitation act).
Legal aid’s claim about how it treats other employees with respect to parking spaces was thrown out by the court because it went beyond the face of the complaint and as such was not suitable for the basis of a dismissal for failure to state a claim. The court then proceeded to address whether reasonably accommodating a commute was reasonable under the Americans with Disabilities Act/rehabilitation act. The court turned to the legislative history which said that a qualified person with a disability seeking employment at a store located in inaccessible mall would be entitled to reasonable accommodations in helping them get to the job site. Also, the court mentioned that the EEOC in an interpretive guidance had said that required accommodations were not exclusive to those specifically listed in the statute and that accommodation might include making employer-provided transportation accessible and providing reserve parking spaces. In short, the court believed they could not throw out the suggested accommodation as a matter of law, rather it would come down to the typical ways you decide whether an accommodation is reasonable and that would be a question of fact. In sum, the court concluded that there was nothing inherently unreasonable given the legislative history and the view of agencies overseeing the federal disability statutes, to require an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work. It then became a question of whether legal aid could develop the factual record to show that the accommodation was unreasonable.
Will this case hold up? As noted above, the Second Circuit in August of this year followed this case. That said, the case seems counterintuitive in light of such things at the coming and going rule and the IRS view of commuting. Also, the legislative history mentioned by the court is capable of more than one meaning. For example, reasonably accommodating someone with respect to getting to a store in an inaccessible mall could be done in a variety of ways outside of stepping in with the commute. Also, the phrase “making employer-provided transportation accessible,” could be argued that it refers to a situation where the employer already provides transportation. Finally, “providing reserve parking spaces,” could be argued to apply to the situation where a parking lot need to have a certain number reserve parking spaces due to the architectural guidelines that must be followed. Also, the phrase, “making employer-provided transportation accessible and providing reserve parking spaces,” comes from an EEOC interpretive guidance. Such guidances do not go through the same rulemaking process and therefore, and courts have noted as such, are not given the same credibility when it comes to interpreting a statute as federal regulations would be.
In short, this is a fascinating case. It is going to take a variety of decisions from the appellate courts and perhaps a final answer from the US Supreme Court to figure out whether the duty to accommodate extends to the commute. As a result, how a particular entity reacts when faced with this situation will be an individual call with different risks associated with either decision (eg. concerns about precedent, willingness to litigate, the entities individual view about preventive law, and the jurisprudence in the controlling jurisdiction).