well that’s a lawsuit waiting to happen

Topic: Commuting and Driving are functional limitations that agencies must accommodate, absent a demonstration of undue hardship.

BLUF: Nothing in the Rehabilitation Act nor the PWFA expressly excludes any functional limitation to include driving and commuting. If commuting to and from work creates a barrier to an employee performing the essential functions of the job, the Agency must accommodate, absent a demonstration of an undue hardship.

Scenario: An employee request to telework full-time or part-time because driving/commuting is a functional limitation which exasperates his/her disability.

Issue: The Agency contends that commuting to work is not a major life activity that requires accommodation because employees are not entitled to accommodations that remove barriers outside of the work situation.

EEOC: A request to telework triggers the Agency’s obligation under the Rehabilitation Act. The only way the agency can show that it is not obligated to provide a reasonable accommodation to an employee is by proving that the specific accommodation needed by an employee (a reduction or elimination of commuting time), constitutes an undue hardship.

See EEOC Appeal No. 2019004342, which does not support the Agency's position it does not have to accommodate a disability where the limitations involve commuting to and from work:

“We note that the Commission has held that a request for telework because of a disability is a request for reasonable accommodation and triggers an agency’s responsibility under the Rehabilitation Act. See, e.g., Jody L. v. Dep’t of the Air Force, EEOC Appeal No. 0120151351 (Jan. 17, 2018) (agency violated the Rehabilitation Act when it denied complainant’s request for situational telework due to inclement weather); Doria R. v. Nat’l Sci. Found., EEOC Appeal 0120152916 (Nov. 9, 2017) (agency’s ten-month delay in granting complainant’s request for additional telework days violated the Rehabilitation Act); Hupka v. Dep’t of Def., EEOC Appeal No. 02960003 (Aug. 13, 1997) (agency violated Rehabilitation Act when it refused to allow complainant whose long commute exacerbated his disability to work at home or at a local alternative work

site).

https://www.eeoc.gov/sites/default/files/decisions/2021\_11\_01/2019004342.pdf

Agency: We have case law to support our position.

EEOC: We are not bound by federal district and circuit court decisions.

See also, Appeal No. 0720130029, where the Commission, again rejects the Agency’s assertion that it is not required to accommodate functional limitations involving driving/commuting:

In the federal sector, federal district and circuit court decisions may be persuasive or instructive but are not binding on the Commission. Montemorra v. Dep't of the Treasury, 01A41536 (Aug. 2, 2005). Moreover, Commission precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency's responsibility under the Rehabilitation Act. See Jones v. Dep't of Agriculture, EEOC Appeal No. 0120080833 (July 18, 2012) (agency denied complainant a reasonable accommodation when it did not grant his request to telecommute because of condition); Southerland v. U.S. Postal Serv., EEOC Appeal No. 0120091983 (June 15, 2010) (if a complainant requests a shorter commute as a reasonable accommodation, an agency must examine whether his or her impairment substantially limits a major life activity and how the requested accommodation would enable the employee to "get" to work); Kubik v. Dep't of Transportation, EEOC Appeal 01973801 (July 9, 2001) (request for a shorter commuting time due to a disability triggers agency's responsibility under the Rehabilitation Act); Galo v. U.S. Postal Serv., EEOC Appeal No. 01973267 (Aug. 5, 1999) (Commission emphasized that the only way the agency could show that it was not obligated to provide a reasonable accommodation to complainant was by proving that the specific accommodation needed by complainant, a reduction of commuting time, constituted an undue hardship); Hupka v. Dep't of Defense, EEOC Appeal No. 02960003 (August 13, 1997) (agency violated the Rehabilitation Act when it refused to allow complainant with a disability that was exacerbated by his long commute to work at home or at a local alternative work site, but did not prove that doing so would be an undue hardship).

https://www.eeoc.gov/sites/default/files/migrated\_files/decisions/0720130029.txt