New Jersey Employment Lawyer Blog

In a recent federal employment law decision, the Third Circuit Court of Appeals ruled that side effects of medication or other medical treatment can constitute an impairment within the meaning of the Americans with Disabilities Act (ADA). The ADA is a federal law which prohibits employers from discriminating against employees because they are disabled.

To be protected by the ADA, an employee must prove he has a disability, as defined by the statute. Usually, an employee proves he is disabled by showing that his disability substantially limits his ability to perform a major life activity. Major life activities include caring for yourself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

In Sulima v. Tobyhanna Army Depot, the Third Circuit ruled that employees can also prove they are disabled by showing that the effects of their medication or other medical treatment substantially impair a major life activity.

Ed Sulima, the plaintiff in Sulima, is morbidly obese and suffers from sleep apnea. As a result of his disabilities, he took weight loss medication prescribed by his doctor. However, the medicine caused him gastrointestinal difficulties which made it necessary for him to take long and frequent bathroom breaks.

Mr. Sulima's supervisor noticed him leaving his desk frequently, and questioned him after he was away from his workstation for a total of two hours during a single work shift. Mr. Sulima explained his time away from his desk was due to a side effect of his medication. The next day, he provided a doctor's note confirming he needed to use the restroom frequently due to a gastrointestinal disorder.

Six weeks later, Mr. Sulima was informed that he was being transferred to a different work area. He then brought in another doctor's note, which indicated that he had changed medications and no longer needed long breaks.

However, the company still decided to transfer Mr. Sulima, even though there were no other work areas available. Three days later, Mr. Sulima accepted a voluntary layoff. He later filed a lawsuit against his employer, claiming his employer forced him to accept a layoff because he is disabled.

The Third Circuit found that, under the circumstances, Mr. Sulima's morbid obesity and sleep apnea were not disabilities under the ADA. As a result, it had to decide whether he could be considered disabled as a result of the gastrointestinal difficulties caused by his medication.

The Third Circuit ruled that an employee who claims he is disabled as a result of his medication or other medical treatment must prove that:

1. the medication or treatment is required in the "prudent judgment" of his medical profession;


2. there is no available alternative that is equally effective and lacks similarly disabling side effects; and


3. the treatment is not solely required for an impairment resulting from the employee's voluntary choices.

It should be noted that, in Sulima, the Third Circuit interpreted the ADA before it was amended by the ADA Amendments Act of 2008. The ADA Amendments Act only applies to disability discrimination claims based on events that occurred on or after January 1, 2009.

It is likely the Court would have applied the same test in a case brought under the ADA Amendments Act. However, since the amendment significantly broadened the definition of a disability under the ADA, the Court might have reached a different conclusion if Mr. Sulima had been fired on or after January 1, 2009.

Many companies offer severance pay to certain employees who they have laid off, downsized, or fired. For example, some companies pay severance to employees who lose their jobs as part of a mass layoff or other reductions in force. Severance is often based on one or two weeks of pay for each year you worked for the company, but the way severance pay is calculated can vary greatly from one job to the next.

Severance pay can help soften the blow of losing your job. However, most severance agreements require you to sign away important legal rights. As a result, it is very important to make sure you understand all of the terms of your severance offer before you agree to it.

In New York and New Jersey, there is no legal obligation for companies to pay any severance to employees. However, if a company has a severance policy, it must follow it. Similarly, if you have entered into an employment contract which entitles you to severance, then your employer must comply with your contract.

What Should I Look Out For Before I Sign a Severance Agreement?

There are many things you should understand before you decide whether to accept a severance offer. Below are some of the most common questions employees have about their severance agreements.

Is my employer offering me enough severance pay?

Perhaps the most common question employees have about a severance offer is whether the employer has offered them "enough" severance. There is usually no simple yes or no answer to that question. However, some important factors to consider include:

What am I entitled to receive if I reject my severance offer?

In some situations, if you reject your severance offer, you will receive nothing. In others, you might be entitled to receive some severance pay even if you do not sign the agreement. Similarly, some companies have policies that entitle you to be paid for your unused vacation, sick, or holday time even if you turn down a severance offer. Others do not.

Has the company offered me everything I am entitled to receive under its severance policy?

In general, a company is required to follow its written severance policy. Under certain circumstances, a company can establish a severance policy by having an established practice of paying severance to its employees who meet certain conditions. It is usually a good idea to make sure your company has included everything you are entitled to receive under its policy or past practice.

Do I have a legal claim against my employer?

Most severance agreements require you to give up all of your legal claims against your former employer before you can receive severance. For example, if you were fired because of your age, race, national origin, gender, disability, religion, or some other unlawful reason, then an employment lawyer may be able to negotiate a better severance package to settle your legal claim. If you sign a severance agreement, you might be waiving your right to sue for discrimination, retaliation, harassment, breach of contract, or any other claims you may have against your former employer.

Is the amount of severance I have been offered reasonable or fair?

Frequently, the amount of severance you have been offered seems unfair or unreasonable, especially considering how long you worked for the company, and how much you have contributed to it. Similarly, your severance offer might not seem fair compared to what your coworkers or peers have been paid in the past.

Unfortunately, companies are not required to be fair or reasonable. If they were, you probably would not have been fired in the first place. However, if your company has not made a fair severance offer, it might be possible for an experienced employment lawyer to negotiate a better severance offer for you.

What rights am I giving up if I accept my severance offer?

Every severance agreement is different, but most require you to waive all of your legal claims against your employer. As a result, it is usually a good idea to talk to an employment law attorney before you decide whether to accept your severance offer. That is one of the reasons why severance agreements usually recommend you consult with a lawyer before you sign it.

Severance agreements often require you to give up other important legal rights. For example, they might require you to agree not to compete with your former employer, or not to solicit your former customers for a period of time. If your severance agreement contains a non-compete or a non-solicitation provision, then you should consider how that provision might effect your ability to find another job, or open a new business, before you decide whether to accept the severance offer.

You should make sure you understand and agree to all of the provisions in your severance offer before you sign it. This is yet another reason why it is usually a good idea to speak with an employment lawyer before you sign a severance agreement.

Many employment law cases involve employees who are fired in violation of their legal rights. However, companies are often too smart to fire an employee for an illegal reason, and instead try to force them to quit.

Courts understand this reality, and have a name for it: a "constructive discharge." A constructive discharge is when, instead of firing an employee, a company makes her job so miserable that she is forced to quit.

The Third Circuit recently discussed how an employee can prove a constructive discharge in Colwell v. Rite Aid Corporation. In that case, Ms. Colwell claimed Rite Aid forced her to resign because of her disability, in violation of the Americans with Disabilities Act (ADA), and because of her age, in violation of the Age Discrimination in Employment Act (ADEA). The facts of Colwell are explained in a previous article which discusses a different legal issue -- that employers can be required to change an employee's work shift to accommodate the employee's disability.

As the Third Circuit explains in Colwell, to prove a constructive discharge an employee must show that the conditions at work were so unpleasant or difficult that a reasonable person would have felt compelled to resign. It then lists relevant factors to determine whether an employee has proved she suffered a constructive discharge. Those factors include whether the employer:

1. threatened to fire the employee, or suggested she should resign or retire;
2. demoted the employee;
3. reduced the employee's salary or benefits;
4. transferred the employee to a less desirable position;
5. changed the employee's job responsibilities; or
6. gave the employee an unsatisfactory job evaluation.

The Third Circuit found Ms. Colwell could not prove any of those factors. Rather, she claimed Rite Aid had isolated her from other employees, called her "slow," and would not allow her to work on the store floor like other employees. The Third Circuit found those facts did not make Ms. Colwell's workplace so unbearable that a reasonable person would have felt compelled to resign. As a result, it dismissed her constructive discharge claim.

It is important to understand that not every constructive discharge is legally actionable. Rather, an employee has to prove the constructive discharge was because of an illegal reason. For example, a constructive discharge could be actionable if a company forces an employee to resign because of her gender, age, race, pregnancy, or religion, or in retaliation for the employee doing something that is legally protected.

Constructive discharge cases can be challenging to prove because it can be difficult to prove that any reasonable person would have felt they had no choice other than to resign. However, employees whose cases do not meet the constructive discharge standard often have hostile work environment harassment cases. For example, although the Third Circuit found Ms. Colwell could not prove she was constructively discharge, it might have ruled differently if she had instead claimed Rite Aid had harassed her because of her disability and her age.