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The proliferation of computer networks and other telecommunications devices has caused some employees to think that it’s actually optional to show up at the office. “Why can’t I just work from home?” is the common refrain. Employers see it differently; they normally want employees on the premises, where employees can collaborate with co-workers and be subject to better supervision. But must the employer modify the rules when an employee claims that a disability makes it difficult or impossible to commute to work? In many cases, the answer is “no.” COMMUTING INCONVENIENCE NORMALLY DOES NOT REQUIRE ACCOMODATION The law of reasonable accommodation helps remove barriers in the workplace. It does not logically follow, however, that the employer must solve the employee’s problems getting to the workplace. In Schneider v. Continental Casualty Co., 1996 WL 944721 (N.D. Ill. Jan. 7, 1997), for example, the plaintiff’s doctor restricted her from commuting more than 15 to 30 minutes at a time due to a back injury. She requested to work at home. The employer denied the request and terminated the plaintiff’s employment. The district court then granted summary judgment, holding that the “[Defendant] was not required to eliminate [plaintiff's] barrier outside of the work environment, i.e., her commute.” Likewise, in Salmon v. Dade County, 4 F. Supp. 2d 1157 (S.D. Fla. 1998), the court rejected plaintiff’s claim that the employer should have accommodated her inability to commute long distances. “[Plaintiff's] commute to and from work is an activity that is unrelated to and outside of her job,” the court held. A dozen or more cases are to the same effect: � Raffaele v. City of New York, 2004 WL 1969869, at *16 (E.D.N.Y. Sept. 7, 2004) (“Difficulties commuting to a job need not be accommodated.”); � Dicino v. Aetna U.S. Healthcare, 2003 WL 21501818, at *15 (D.N.J. June 23, 2003) (employer was not obligated to accommodate plaintiff’s requests “which essentially constitute commuting problems”; “[A]s defendant correctly contends, [plaintiff's] request goes directly to plaintiff’s ability to get to and from her work location, having nothing to do with her ability to perform her job duties once she got where she needed to be.”); � Arnold v. County of Cook, 2003 WL 21317270, at *2 n.4 (N.D. Ill. June 5, 2003) (employer’s obligation to provide accommodation did not extend to “activities that fall outside the scope of the job, like commuting”); � LeResca v. AT&T, 161 F. Supp. 2d 323, 335 (D.N.J. 2001) (“[T]he change to the day shift sought by Plaintiff was in essence a commuting problem, which [defendant] was not legally obligated to accommodate.”); � Bull v. Coyner, 2000 WL 224807, at *9 (N.D. Ill. Feb. 23, 2000) (“Activities that fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer’s obligation under the ADA.”); � cf. Sinkler v. Midwest Prop. Mgmt. Ltd. P’ship, 209 F.3d 678, 684-85 (7th Cir. 2000) (getting to and from work assignments is not a major life activity; “[I]n comparison with the major life activity of working � we do not find commuting equally significant.”). The EEOC has informally opined similarly in EEOC Informal Guidance Letter from Elizabeth M. Thornton, Deputy General Counsel (June 15, 1993) (“In general, it would not appear that an employer must provide an accommodation to assist the employee in getting to work. Unlike travel that is required during the workday as part of the job, commuting to or from an employee’s home is not a function of the job.”). Some are surprised to learn of this line of authority. Yet the principle underlying it — that the employment relationship, and its attendant mutual obligations, start at the office door — is bedrock employment law in a host of diverse contexts. For example, the Portal-to-Portal Act excludes commuting time from the definition of compensable hours worked. Likewise, the so-called “coming and going” rule in workers’ compensation law treats injuries incurred during commuting as outside the scope of employment. Tax law draws the same distinction in which commuting expenses are the employee’s responsibility. Numerous other areas of the law are to the same effect. Simple logic underlies the distinction between commuting and working. The employer’s reasonable-accommodation obligation is to fix that which it and only it can control. An employee’s place of residence — and thus the length of his or her commute — is a matter of personal choice. This helps explain what the 9th Circuit held — and did not hold — in Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128 (9th Cir. 2001), a case that required work-at-home as a reasonable accommodation. Humphrey commonly is miscited for the proposition that working at home is a reasonable accommodation to be considered in every case. But Humphrey arguably is not correctly decided, and even if good law the actual holding of the case is narrow. The Humphrey plaintiff’s obsessive-compulsive disorder effectively precluded any commuting. Most disability plaintiffs, by contrast, are able to commute somewhat; they contend that their commutes are just too long. Commuting-length cases thus are covered by the rule of law in Schneider, Salmon and similar cases; such “length” cases differ from Humphrey and the few other cases that have required the accommodation of off-site work: � Langon v. Dep’t of Health & Human Servs., 959 F.2d 1053, 1055 (D.C. Cir. 1992) (Rehabilitation Act case; working at home may be a reasonable accommodation for plaintiff with multiple sclerosis where doctor indicated that the patient must be allowed to do the job full time in the home); � EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 563 (6th Cir. 2001) (employer should consider transfer as a reasonable accommodation for an employee who suffered a severe reaction to an allergen present in the workplace), cert. denied, 535 U.S. 904 (2002). These cases involve employees who were required to work at home or off-site, either because they were unable to get to work at all, or because the workplace itself was the barrier to be eliminated. Commuting-length cases simply are different; it should be up to the employee to resolve a commuting-length restriction, as the authorities above suggest. ON-PREMISES WORK MAY BE AN ESSENTIAL FUNCTION IN ANY EVENT Even if work-at-home potentially is a reasonable accommodation, work on the premises may be an essential function that the employer need not compromise. Teamwork and on-the-spot resolution of issues often require an employee to be physically present for work. In Kvorjak v. Maine, 259 F.3d 48 (1st Cir. 2001), for example, the plaintiff, who was partially paralyzed, worked as a claims adjudicator for the state of Maine. The state closed his office and offered to reassign him to another one, 90 minutes from his home. Kvorjak requested to work at home, citing a letter from his physician predicting detriment to health from the longer commute. The state rejected his request, and Kvorjak sued for failure to accommodate. The 1st Circuit affirmed summary judgment, finding that working at home was not a reasonable accommodation. Claims adjudicators needed to be in the office, the court held, because their work “often relies on on-the-spot collaborative efforts among the call center’s various employees.” Accord, e.g., Rauen v. United States Tobacco Mfg. Ltd. P’ship, 319 F.3d 891, 897 (7th Cir. 2003) (working at home was not a reasonable accommodation; plaintiff’s job involved “problems requiring immediate resolution” that “would undoubtedly arise on the spur of the moment” and required “teamwork, interaction, and coordination” with co-workers); Hypes v. First Commerce Corp., 134 F.3d 721, 726-27 (5th Cir. 1998) (rejecting sales representative’s request to work at home; plaintiff “failed to present any facts indicating that his was one of those exceptional cases where he could have ‘performed at home without a substantial reduction in [the] quality of [his] performance.’”). CONCLUSION Plaintiffs and their counsel often say that modern communications devices have rendered the office obsolete. But the cases teach otherwise. Paul W. Cane Jr. is a partner in Paul, Hastings, Janofsky & Walker’s San Francisco office. Paul Hastings senior associate Katherine C. Huibonhoa contributed to this article.

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