Employers Must Provide Reasonable Accommodations to Disabled Employees in Scheduling Shifts

On April 8, 2010, the Court of Appeals for the Third Circuit held that employers must provide “reasonable accommodations” to disabled employees in establishing work schedules, even when the sole disability-related issue involves an employee’s commute to work. In Colwell v. Rite Aid Corp., No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a part time retail clerk, who was diagnosed with retinal vein occlusion in her left eye, later became blind in that eye. Although she was able to perform the essential functions of her job once she arrived at work, her handicap made it difficult to drive at night. She requested a shift change whereby she would only work during day shifts. There were no taxis available and public transportation ended at 6 p.m.

Rite Aid’s supervisor refused her shift change request advising it would be unfair to the other employees and would be violative of the collective bargaining agreement as shift assignments were based on seniority.

After repeated requests for shift changes were rejected and/or left unaddressed, Colwell resigned her employment and filed suit alleging, among other claims, Rite Aid failed to accommodate her disability, constructive discharge and retaliation. The district court dismissed her complaint.

The Third Circuit affirmed the dismissal of her constructive discharge and retaliation claims but reversed on the failure to accommodate claim holding there was an issue of fact as to whether Rite Aid tried to accommodate her disability.

In rejecting Rite Aid’s argument that Colwell was seeking a non-workplace related accommodation, i.e., commuting to work, the Court held the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. Rite Aid failed to argue that the requested accommodation created an undue hardship on its business.

Employers are reminded there is an affirmative obligation for employers to engage in the interactive process.

If you have any questions relating to an employer’s obligations to engage in the interactive process contact Robert A. Tandy, Esq at (201) 474-7103.