A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances. In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma. So, she could not drive at night. She asked to change shifts from the night shift to the day shift. Rite Aid refused, because "it would not be fair to other employees." A doctor provided a note also stating that she should not work at night. But, it was to no avail. Rite Aid refused. The employee relied on family members to pick her up from work after 5:00 pm. But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.
On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive. The federal Third Circuit rejected that argument. The court found that the employer should have allowed the shift change. The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."
As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work. But, this requested accommodation was different. This requested accommodation concerned more the conditions of employment once the employee was actually at work. The employer did indeed control whether the employee would work at night or during the day.
The employer must engage in an "interactive process" to arrive at a solution to the accommodation request. Rite Aid had "flatly" rejected Colwell’s requests for an accommodation. And, later, Colwell resigned before any further meetings could occur. Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process. But, that decision was a fact question. Facts questions should be decided by the jury, not a judge.