Employer says there are no laws for this?

[bills2pay]

What is the name of your state (only U.S. law)? TN

My bother has Epilepsy.
He has worked for a very large grocery chain (who he informed he had Epilepsy when they hired him) for 8 years and has been an excellent employee.
He has never requested special treatment or accommodation until recently after moving in with me.
Considering that he cannot obtain a drivers license and that there are no buses that run here, he has asked that they schedule him a shift that allows him to ride with someone who works in another dept. The shift he is requesting DOES exist in the dept he works in.
After meeting with the store manager, co-manager, and dept manager he was told that (company name) has no rules they have to follow in this situation. They refused to work with him stating that they cannot show him preferential treatment; however, there are employees at this store that do have selective scheduling due to bus routes, second jobs, etc..
We thought that the EEOC had rules in this type matter. Are we mistaken?

 

[tranquility]

Yes and no. An employer in this situation must go through an interactive process in the hope of developing a reasonable accommodation to a person's disability.

A request to change schedules has been found to be a reasonable accommodation in many instances and a reassignment to a vacant position is specifically mentioned in the ADA; even if it is against company policy. The general guideline is, is it effective without causing an undue hardship.

However, the way things are being phrased is that the employee is asking to change schedules to get his preferred method for getting to work easier. While there is some nexus to not being able to drive and his disability, being able to drive is not a requirement for getting to work. There are other ways. (Like the one being attempted.) Getting to work is not work. I think it is a bit of a stretch to say this is a reasonable accommodation to the employees disability. While the things being asked for are clearly within the scope of a reasonable accommodation, the link here may be a problem.

Still, it seems a close enough call with not much of an undue hardship I am uncertain why the employer would not agree. The cost of being wrong can be high. Besides, there is some support for such a request.
http://www.littler.com/publication-press/publication/federal-appeals-court-holds-employers-may-be-obligated-under-ada-accom

The article talks about the 2nd circuit and how it might be considered. However, in your circuit (TN is in the 6th), the current law is against you according to a footnote:

See Smith v. Ameritech,129 F.3d 857, 867 (6th Cir. 1997) (sales representative who requested to work from home failed to establish that his was one of the "exceptional circumstances" that could be considered reasonable for an employer to accommodate);

The fact there is a circuit split means the law on the matter is still in flux. In the interactive process, I wouldn't hammer so much on the law, but on how good an employee he is and how this will help him help the company. If you go to litigation, the results are uncertain at best.

 

[bills2pay]

I forgot to add that he did request a transfer to a store closer to us (only 11 miles), but they refused because they said they are not transferring full time employees.

 

[ecmst12]

He should still be able to get a driver's license if his epilepsy is controlled. When was the last time he had a seizure?

 

[tranquility]

I forgot to add that he did request a transfer to a store closer to us (only 11 miles), but they refused because they said they are not transferring full time employees.

How would that change accommodate hIs disability? Again, I think the same issue. ( Although a bit less of an accommodation.

 

[OHRoadwarrior]

A fact you will learn, when you explore this is basic. A person with Epilepsy, though they may qualify for SSDI on their symptoms, will NEVER be granted disability because they can't get back and forth to work from it. Therefore, the gov't has drawn a clear line between work and transportation to work, in terms of disability.

 

[bills2pay]

A fact you will learn, when you explore this is basic. A person with Epilepsy, though they may qualify for SSDI on their symptoms, will NEVER be granted disability because they can't get back and forth to work from it. Therefore, the gov't has drawn a clear line between work and transportation to work, in terms of disability.

He's not trying to apply for SSDI... he wants to go to work. He's only asking his place of employment to grant him the same scheduling preference that they're giving others in the store who have bus route issues, babysitter issues, or have second jobs so that he can get to work

 

[OHRoadwarrior]

He's not trying to apply for SSDI... he wants to go to work. He's only asking his place of employment to grant him the same scheduling preference that they're giving others in the store who have bus route issues, babysitter issues, or have second jobs so that he can get to work

You are missing the point. I was explaining the government DOES NOT CARE whether you can get back and forth to work. It IS NOT an accommodation issue. There would be an exception to this if it was public transportation AND a position was available. Hitching a ride, is not scheduled transportation.

 

[tranquility]

You are missing the point. I was explaining the government DOES NOT CARE whether you can get back and forth to work. It IS NOT an accommodation issue. There would be an exception to this if it was public transportation AND a position was available. Hitching a ride, is not scheduled transportation.

Even if it were scheduled transportation, the OP's circuit does not require an accommodation for commuting.

 

[RRevak]

He should still be able to get a driver's license if his epilepsy is controlled. When was the last time he had a seizure?

Not necessarily. I am familiar with 2 individuals who cannot legally obtain drivers licenses due to the severity of their epilepsy. That's even with medication.

OP can your friend not find someone working the same shifts he does to give him a ride? Perhaps he could ask his employer if it would be alright if he posted a written request in a breakroom asking if someone working similar shifts would be willing to drive him in exchange for a few dollars? I'm sure SOMEONE would be able to.

 

[bills2pay]

Not necessarily. I am familiar with 2 individuals who cannot legally obtain drivers licenses due to the severity of their epilepsy. That's even with medication.

OP can your friend not find someone working the same shifts he does to give him a ride? Perhaps he could ask his employer if it would be alright if he posted a written request in a breakroom asking if someone working similar shifts would be willing to drive him in exchange for a few dollars? I'm sure SOMEONE would be able to.

We've tried finding someone; but unfortunately, everyone that lives within a 30 mile radius works different shifts. Yesterday, he was scheduled at 1:30pm. In order to get a ride to work, he rode with someone who was scheduled at 7:30am and sat in the breakroom the entire day. The way that "grocery store" does the scheduling is per department. Out of approx 20 employees working, 12 of those are kids whose parents drop them off or they ride the bus. The others would have to drive at least 23 miles (one way) out of their way so finding someone willing to do that is difficult. We're still trying though.