The Americans with Disabilities Act requires employers to provide qualified disabled employees and applicants with reasonable accommodations that allow them to perform the essential functions of their jobs. Federal courts have split with regard to the employer's obligation to help disabled employees get to and from work. Last month in an unpublished opinion, the Second Circuit Court of Appeals concluded that the ADA's accommodation obligations encompass commuting assistance.

In Nixon-Tinkelman v. New York City Dep't of Health and Mental Hygiene, the plaintiff had multiple significant physical disabilities. After moving boroughs, she claimed that her employer refused to consider providing her assistance with her longer and more difficult commute to work. The employer responded that commuting was outside of the scope of the plaintiff's job, and therefore there was no ADA accommodation requirement.

The Second Circuit disagreed with the employer, remanding the case to the trial court for a determination as to whether the requested accommodations were reasonable. The court stated that because job performance relies on attendance, the employer must consider measures that allow the disabled employee to get to and from work. Without expressing an opinion on reasonableness, the Second Circuit noted that providing a city car and/or a parking permit to the plaintiff could have been effective accommodations.

Other federal courts have concluded that commuting is a means to accomplish work, and not an essential function of the job itself. Interestingly, these decisions often fall into geographic divisions. Courts in larger metropolitan areas seem more receptive to requests for assistance with often long and complicated commutes. Cases arising from more suburban and rural locations have resulted in less sympathetic views of the employer's obligation to assist the employee in getting to and from work.

Absent a U.S. Supreme Court decision settling this split, employers' obligations to accommodate disabled employees' commutes depends on what federal jurisdiction includes the specific workplace.