New Jersey Employment Lawyer Blog

On April 8, 2010, in the case of Colwell v. Rite Aid Corporation, the United States Court of Appeals for the Third Circuit ruled that employers can be required to change an employee's work shift to accommodate the employee's disability. The Third Circuit is the federal appellate court that covers several states, including New Jersey.

The Facts of Colwell v. Rite Aid Corporation

Jeanette Colwell worked as a cashier at a Rite Aid store. On some days she worked the day shift (9 a.m. to 2 p.m.), and on other days she worked the night shift (5 p.m. to 9 p.m.).

In the summer of 2005, Ms. Colwell was diagnosed with retinal vein occlusion and glaucoma in her left eye. She eventually went blind in her left eye.

Although Ms. Colwell was able to do her job, her disability made it difficult for her to drive at night, and there was no public transportation available after 6 p.m. In September 2005, she told her supervisor, Susan Chapman, that her partial blindness made it dangerous for her to drive to work at night. Ms. Chapman refused to change her shift, claiming it would not be fair to her coworkers.

In late September or early October 2005, Ms. Colwell gave Ms. Chapman a doctor's note saying she should not drive at night. Ms. Chapman still refused to allow Ms. Colwell to replace her night shifts with day shifts.

With rides from her family, Ms. Colwell was able to work her night shifts. However, she told Ms. Chapman she could not depend on other people for rides all the time. Working night shifts was also a hardship for Ms. Colwell's family. Nonetheless, Ms. Chapman continued to schedule her for both day and night shifts.

In October 2005, Ms. Colwell spoke to her union representative, Ken Karasek, about her need to change her shifts. Mr. Karasek was unable to convince Ms. Chapman to switch Ms. Colwell's night shifts for day shifts. However, he scheduled a meeting between himself, Ms. Colwell, and Ms. Chapman to discuss the issue further. Mr. Karasek did not to show up to the meeting. Although Mr. Karasek offered to reschedule the meeting, Ms. Colwell was fed up, and submitted a resignation letter on October 12, 2005.

Ms. Colwell then sued, claiming disability discrimination in violation of the Americans with Disabilities Act (ADA). Specifically, she alleged that Rite Aid failed to provide her a reasonable accommodation for her disability in violation of the ADA. She also claimed Rite Aid constructively discharged her in violation of both the ADA and the ADEA.

Failure to Accommodate Disability

The Third Circuit found that Ms. Colwell's disability discrimination claim should be decided by a jury. An employer discriminates against an employee in violation of the ADA if it fails to reasonably accommodate an employee's known physical or mental limitations, unless the company can prove that providing the necessary accommodation would impose an undue hardship on its business.

Depending on the circumstances, an employer might be required to make the workplace accessible to disabled employees as a reasonable accommodation. Other examples of reasonable accommodations can include restructuring a disabled employee's job, providing her a part-time or modified work schedules, reassigning her to a vacant job, or obtaining different equipment or change existing equipment.

The Court further explained that the ADA requires employers to engage in an "interactive process" with disabled employees. The purpose of this interactive process is to decide whether the company can provide a reasonable accommodation to allow the disabled employee to perform her job.

An employer that fails to provide a reasonable accommodation to a disabled employee violates the ADA if:

1. the employer knew about her disability;


2. the employee requested an accommodation or assistance for her disability;


3. the employer did not make a good faith effort to help the employee to seek an accommodation; and


4. the company could have provided the employee a reasonable accommodation if it had acted in good faith.

When an employee requests a reasonable accommodation she does not need to use any "magic words." Rather, she just has to make it clear she needs assistance for her disability. In other words, if the employer has enough information to know the employee has a disability and needs an accommodation, then it needs to ask the employee how it can help her. At that point, both the employer and the employee must work together to search for an appropriate reasonable accommodation.

Applying this law, the Third Circuit ruled that the ADA can require a company to accommodate an employee's disability which limits her ability to get to work. That includes allowing an employee to change shifts to accommodate her disability if doing so is reasonable under the circumstances.

In the end, the Third Circuit found that, if a jury believes Ms. Colwell version of the facts, then it could find that Rite Aid violated the ADA. Specifically, a jury can find that as soon as Ms. Colwell asked Ms. Chapman to change her schedule because her disability prevented her from driving at nite, Rite Aid should have talked to her about how it could accommodate her disability. As a result, the Court sent the case back to the trial court so a jury can decide whether Rite Aid discriminated against Ms. Colwell in violation of the ADA.

Today, a new employment law, the New Jersey "Emergency Responders Employment Protection Act," goes into effect. The new law makes it illegal for employers to fire or suspend an employee who fails to report for work because (1) the employee is actively engaged in responding to an emergency alarm, or (2) the employee is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of New Jersey. The law defines volunteer emergency responder as members of volunteer fire companies, first aid squads, rescue squads, ambulance squads, and county or municipal Office of Emergency Management, whose official duties include responding to fires or other emergency calls.

A volunteer emergency responder must meet two additional requirements to be protected by this law:

(1) at least one hour before they are scheduled for work, they must provide notice to their employers that they are providing emergency services in response to an emergency alarm or a state of emergency; and

(2) when they return to work, they must provide their employers a copy of the incident report and a certification from the incident commander or official in charge. The certification must confirm that the volunteer emergency responder was actively engaged in, and necessary for, providing emergency services. The certification also must indicate the date and time at which the volunteer emergency responder was relieved from emergency duty.

The new law allows volunteer emergency responders to use any available vacation or sick days to get paid for any time they miss from work while they are serving as volunteer emergency responders. Otherwise, it does not require employers to pay emergency responders for any time they miss from work.

The law does not apply to any employee who is deemed an essential employee under a contract or another law.

These new employment rights are in additional to numerous other protections that firefighters, paramedics, and other emergency service employees working in New Jersey already have. For example, they are protected from retaliation by the First Amendment, the Conscientious Employee Protection Act, and the New Jersey Civil Rights Act. They are also protected from discrimination and harassment because of age, gender, disability, race, national origin, veteran status, religion, pregnancy and sexual orientation<, among other legally protected categories, under the New Jersey Law Against Discrimination.