The Court of Appeals for the Third Circuit recently held in Colwell v. Rite Aid Corp., 2010 WL 1376301 (3d Cir. 2010), that under the ADA, an employer must engage in the interactive process and consider whether changing an employee's shift is a reasonable accommodation for an employee whose disability (blindness in one eye) interfered with the ability to commute to work at night.    

The employee worked as a cashier, generally from 5 p.m. to 9 p.m.  In the summer of 2005, she lost the sight in her left eye and informed her supervisor that her partial blindness made it dangerous and difficult to drive to work.  The employee also explained that she had no other means to get to work at night because buses stopped running at 6 p.m., no taxis were available, and she could not regularly count on family members to drive her to and from work.  As a result, the employee wanted to be reassigned to steady day shift work.  Nonetheless, the employer denied the request, explaining that it would be unfair to other workers.

The employee eventually resigned, but filed a lawsuit under the ADA asserting that the employer failed to reasonably accommodate her disability.  The district court dismissed the case, reasoning that although the employee was disabled for purposes of the ADA,  her problem was getting to and from work, and the ADA did not require the employer to accommodate a problem that falls outside of the work environment.  

On appeal, the Third Circuit reversed, observing that the "ADA does not strictly limit the breadth of reasonable accommodations to address only those problems that an employee has in performing her work once she arrives at the work place."  The court explained that while employers are not responsible for how employees get to work, shift changes are within an employer's control and, under certain circumstances, they can be a reasonable accommodation.  The court was careful to note, however, that it was not holding that the employer had to grant the employee's request for a shift, especially given its possible impact on other employees.  Instead, the court was holding only that the employer had a duty to consider the employee's request for a shift change, and the question of whether the request amounted to an undue hardship would be for the jury.

The Third Circuit's recent decision, which was decided under the ADA as it existed before the recent amendments expanded the scope of those who will be considered to be disabled, illustrates the need to avoid drawing bright lines when deciding whether to engage in the interactive process with an employee requesting an accommodation.