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WHAT’S REASONABLE IN A REASONABLE ACCOMMODATION?

Added on 07/15/2016 by kalsonlaw

As you may be aware, both the New Jersey Law Against Discrimination and the Americans with Disabilities Act require an employer to reasonably accommodate the needs of a disabled or handicapped employee so that they can perform the essential functions of the job. While the Americans with Disabilities Act applies to only employers having only 15 or more employees, the New Jersey Law Against Discrimination or LAD applies to every employer who has one or more employees. Most attorneys for the Plaintiff, or employee who has suffered an adverse employment action prefer to bring a case in State Court under the LAD. A request for reasonable accommodation can be made by an individual with a disability or family member, friend, medical provider /health care professional or other representative.

The request itself does not need to use any special language or even incorporate the phrase “reasonable accommodation”. The EEOC enforcement guidelines as well as the Tynan case note that an individual may use “plain English” and need not mention the ADA or LAD. Even if an employee who becomes disabled while working just says to the employer, “I want to keep working for you”, the employer has an affirmative duty to ascertain whether an accommodation may be made. An employer knows that an employee has a disability when the employee tells the employer about his condition or when the employer otherwise becomes aware of the condition such as through a third party or observation.

The burden of proof in a reasonable accommodation case is as follows: The employee need only show that the accommodation seems reasonable on its face or ordinary. Once the employee has shown that the accommodation they need is reasonable, the burden shifts to the employer to show that the reasonable accommodation would cause an undue hardship in the particular circumstances.

Moreover, the regulations implementing the LAD affirmatively require an employer to consider the possibility of reasonable accommodation before firing a person with a disability. The regulations provides numerous examples of reasonable accommodation. Reasonable accommodations include making existing facilities accessible, job restructuring, part time or modified work schedule, acquiring or modifying equipment, changing tests, training materials or policies, providing qualified readers or interpreters, reassignment to a vacant position and a leave of absence. A short term leave of absence is presumed to be a reasonable accommodation even if an employee is not entitled to family medical leave. However, the leave of absence can not be open-ended or indefinite in term. In the case of Brown vs Dunbar Armored, the Court held that the employer has an obligation to provide leave beyond FMLA unless it creates an undue hardship on the employer.

In addition, Courts have consistently found that policies prohibiting injured employees from returning to work unless they can do so without restrictions, violates the law. As the ninth circuit explained in the McGregor case , a 100% healed or a fully healed policy discriminates against qualified individuals with disabilities. Such a policy permits employers to substitute a determination of whether a qualified individual is 100% healed from their injury for the required individual assessment as to whether the qualified individual is able to perform the essential functions of his or her job with a reasonable accommodation.

Reasonable accommodation requires a “good faith, interactive process between the parties”. In other words, the employer and employee must talk to one another regarding the accommodations request. The New Jersey Law Against Discrimination also covers temporary disabilities. Recently, I had a case where the employee was a retail store manager. The individual underwent bunion surgery. The individual had exhausted his/her 12 week leave under the Federal Family Medical Leave Act. The individual’s doctor advised that he/she could return to work if he/she did not have to stand on his/her feet for 40+ hours a week. Suggested accommodations were that the individual could sit down or work part time. Other accommodations could have included use of a wheelchair, crutches, or an assistant. The employer would not give the individual the accommodations requested by the doctor. The company did not even talk to the employee about the requested accommodations. The employer did not offer any other accommodations as an alternative to the ones requested. Rather, the employer made up a form which it required the employee’s doctor to complete which was essentially full duty or no duty. In other words, the employee could only return to work if they could work full duty.

When the employee could not return to work full duty, the employer unilaterally decided to issue two additional short leaves of absence to the employee. When the employee could still not return to work full duty, the employee was abruptly terminated. His/her wrongful termination caused severe emotional and economic distress. He/She had no choice but to file litigation. In that case, the employer was unaware of its obligations under the New Jersey LAD. It did not understand that it had to consider other reasonable accommodations besides the extended leaves. The employer was a Pennsylvania corporation. The Human Resource Department had only been trained on the Americans with Disabilities Act and not the New Jersey LAD even though it operated retail stores in New Jersey. The Human Resource manager was unaware that temporary disabilities were protected by law and a good faith interactive process was required. After protracted litigation and discovery, the case did settle.

I can only hope the company had more training on the law after the case. I am amazed how many companies today still don’t have specific training on disability discrimination and reasonable accommodations. Many harassment/discrimination polices still only reference sexual harassment. Don’t get me wrong, sexual harassment is still a big problem and will be addressed in my next blog.