New Jersey Employment Lawyer Blog

Articles Posted in Reasonable Accommodations

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New Jersey’s Appellate Division recently ruled that a treating physician can testify about an employee’s disability without submitting an expert report. Normally, a witness who is going to provide an expert opinion is required to submit a formal report explaining his or her opinions prior to the trial.

Patricia Del Vecchio worked as police dispatcher for the Township of Bridgewater for approximately a decade. Over the last five years she held that position, her gastroenterologist, Gary Ciambotti, M.D., wrote fourteen doctors’ notes indicating that due to a variety of gastroenterological conditions, including irritable bowel syndrome, Ms. Del Vecchia should not work the night shift unless it was an emergency.

For three years, Bridgewater did not require Ms. Del Vecchio to work the night shift, but eventually it asked her to transfer to the midnight shift. She indicated she did not want to work the midnight shift because of her medical condition. In response, Bridgewater told her that if she did not accept a transfer to another job it would fire her.

Police Dispatcher Working At ConsoleMs. Del Vecchio accepted a transfer, and Bridgewater assigned her to be a clerk in the Police Department’s records office. Bridgewater fired her approximately 7 months later, claiming she excessive absenteeism. Ms. Del Vecchio sued, claiming Bridgewater fired her instead of providing her a reasonable accommodation for her disability, in violation of the New Jersey Law Against Discrimination (“LAD”).

At the trial, the judge limited Dr. Ciambotti’s testimony because he did not submit an expert report. The judge allowed Dr. Ciambotti to testify about the fact that he treated Ms. Del Vecchio for irritable bowel syndrome, and permitted Ms. Del Vecchio to use his notes to prove she requested an accommodation. However, the judge ruled he could not testify about Ms. Del Vecchio’s medical condition, and instructed the jury it could not use his notes to support Ms. Del Vecchio’s claim that had a disability.

Bridgewater had its own expert, Steven Fiske, M.D., who explained irritable bowel syndrome to the jury. However, Dr. Friske testified that even though he has treated thousands of patients who have that condition, none of them were unable to work a night shift because of it. He also stated it was possible Ms. Del Vecchio was malingering, meaning she might have been using her medical condition as an excuse to avoid being assigned to an undesirable shift.

The jury found against Ms. Del Vecchio, concluding she did not establish she had a disability within the meaning of the LAD. Ms. Del Vecchio asked the judge to grant her a new trial, which he denied. She then appealed, arguing the trial judge improperly limited Dr. Ciambotti’s testimony.

In Del Vecchio v. Township of Bridgewater, the Appellate Division reversed. Relying on two previous New Jersey Supreme Court opinions, it explained that although a treating physician usually is an “expert,” they are not required to provide an expert report to be able to testify about facts relevant to their evaluation and treatment of their patient. Accordingly, it ruled Dr. Ciambotti should have been permitted to testify about Ms. Del Vechhio’s illness, diagnosis, treatment and progress.

The Appellate Division further found it was substantially likely the exclusion of this evidence may have changed the outcome of the trial. In particular, it found that limiting Dr. Ciambotti’s testimony so severely effectively left the jury with nothing to rely upon other than Dr. Friske’s testimony. Accordingly, it ruled that Ms. Del Vechhio is entitled to a new trial.

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A recent decision by the New Jersey District Court addressed important issues regarding retaliation following an employee’s request for a reasonable accommodation and time off under the Family and Medical Leave Act (“FMLA”).

Supermarket CartsIn Boles v. Wal-Mart Stores, Inc., plaintiff Barry Boles worked for Wal-Mart Stores, Inc. for approximately ten years. As a result of a medical condition, his physician signed him out of work for approximately five months, which included several extensions of leave. Wal-Mart retroactively approved his FMLA leave (12 weeks), and designated his remaining time off as personal leave. The plaintiff claimed he did not receive documentation regarding how his leave was allocated or indicating he could be fired if he failed to return to work following his FMLA leave. Within three days after Boles returned to work, Wal-Mart terminated him for failure to return to work following his approved leave.

The plaintiff had received a performance warning approximately two weeks prior to taking leave. Shortly thereafter, Wal-Mart claimed that on one occasion prior to his leave he failed to complete certain overnight job responsibilities and to notify his supervisors that he was leaving early.

The plaintiff brought claims for (1) retaliation for seeking an extension of medical leave in violation of the New Jersey Law Against Discrimination (“LAD”); (2) disability discrimination under the LAD; (3) failure to reasonably accommodate his disability under the LAD; and (4) interference with his FMLA rights.

Reasonable Accommodation

Regarding the reasonable accommodation claims, Wal-Mart argued the plaintiff could not meet his burden of proof because “taking medical leave does not constitute protected activity that would support a retaliation claim under the NJLAD.” The Court rejected this argument and held that the LAD’s anti-retaliation provision includes as “protected activity” requesting and taking medical leave. As a result, employers found to have retaliated against employees for requesting or taking medical leave can be liable. The Court also found there was sufficient evidence to support the plaintiff’s claim that his discharge was motivated by Wal-Mart’s resentment toward his request for leave. In so concluding, the Court relied on (1) an email his direct supervisor sent to his own supervisor about discharging the plaintiff during his FMLA leave; and (2) the fact that Wal-Mart discharged the plaintiff only three days after he returned to work.

The Court, however, held that because the plaintiff had received a warning indicating unsatisfactory work performance, left work without notifying his supervisors, and failed to complete certain overnight work, he could not meet the necessary initial showing for a disability discrimination case. In particular, the Court concluded that the plaintiff was not meeting his employer’s reasonable expectations regarding his work performance. Surprisingly, the Court also held the plaintiff did not request a reasonable accommodation when he provided a physician’s certification indicating he needed leave beyond the date he originally requested. The Court found the plaintiff did not directly request additional leave from his employer, but rather merely submitted a certification from his physician indicating a later return to work date. The Court found these facts could not maintain a claim for a failure to accommodate a disability. The Court then granted summary judgment to Wal-Mart in these respects.

FMLA Interference

The Court stated it was unclear whether Wal-Mart provided the plaintiff adequate notice that he was eligible for FMLA leave or sufficient information regarding the expiration of his FMLA leave. The Court found that the plaintiff may have been prejudiced by the company’s failure to provide adequate notice since he may have made alternative plans if he understood he could be fired if he did not return to work prior to the expiration of his approved leave. As a result, the Court denied Wal-Mart summary judgment as to the plaintiff’s claim of interference with his FMLA rights.

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Mayor Michael Bloomberg recently signed a new law amending the New York City Human Rights Law (NYCHRL) to provide additional protections for women who are pregnant or giving birth. Specifically, the Pregnant Workers Fairness Act requires employers with at least four employees or independent contractors working for them to provide reasonable accommodations for pregnancy, childbirth, or related conditions even if the employee is not disabled. A reasonable accommodation is either a modification to the way a job is performed, or a change to a job duty, that permits the employee to perform the essential functions of her job. The new law goes into effect on January 30, 2014.

Under the NYCHRL, an employer can deny a reasonable accommodation if the employee still would not be able to perform the essential functions of her job, or if providing it would impose an undue hardship on its business. The employer has the burden to prove either of these defenses. In determining whether an accommodation would impose an undue hardship, a company can consider (1) the nature of the accommodation and its cost; (2) the financial and personnel resources of the location at which the accommodation would be provided; (3) the financial and other resources of the entire company; or (4) the composition of the company in terms of the workforce, geographic locations and other similar factors.

New Rights for Pregnant Employees In NYC.1.jpgUnder the Act, an employer must provide reasonable accommodations for pregnancy or child birth if it knows or should know the employee is pregnant. This suggests it is not necessary for an employee to request an accommodation for the employer to be obligated to provide one. Of course, the easiest way to ensure your employer knows you need an accommodation is to request it so there is no doubt your employer knows you need it. The same provision raises the question of what would happen if an employer tries to provide an unnecessary or unwanted accommodation. Presumably this should be addressed in a discussion between the employer and the employee (the “interactive process”), but there still could be issues if the employer believes it is legally obligated to provide an accommodation that the employee does not want.

The Act lists several examples of possible accommodations for pregnancy, including additional bathroom breaks and other breaks and rest time during the workday, leaves of absence, and assistance with manual labor. These are only examples, and other accommodations can be required when they are reasonable.

New York City employers also are required to provide written notice to employees about their right not to experience discrimination based on pregnancy, childbirth, or related medical conditions. Companies have to provide this notice to current employees within 120 after the law goes into effect, meaning by May 30, 2014. They also have to provide this information to any new employees when they are hired, and to conspicuously post it in the workplace in a location where it can be seen by all employees.

The Pregnant Workers Fairness Act is similar to the Religious Freedom Act, another amendment to the NYCHLR that was passed late last year regarding reasonable accommodations for religious beliefs. For more information about the Religious Freedom Act, please see our article: New York City Clarifies Right to Reasonable Accommodations for Religious Beliefs.

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Earlier this month, New York’s highest court ruled that although an employee is not entitled to take an indefinite leave of absence as a reasonable accommodation under the New York Human Rights Law (NYHRL), they might be entitled to do so under the New York City Human Rights Law (NYCHRL).

In the case, Giuseppe Romanello worked for Intesa Sanpaola S.p.A. (Intesa) for approximately 25 years. He experienced major depression and other medical conditions that prevented him from working. Accordingly, he took a leave of absence under the Family & Medical Leave Act (FMLA). After a five-month paid leave of absence, the company’s lawyer sent a letter to Mr. Romanello’s lawyer indicating that his FMLA leave time was about to run out, and asking if he intended to return to work or abandon his job. Mr. Romanello’s lawyer responded that although he had no intention of abandoning his job, Mr. Romanello still was medically unable to work for the company, and needed an “indeterminate” leave of absence. The company fired Mr. Romanello in response.

NYHRL Leave of Absence and Reasonable Accommodation.jpgMr. Romanello then filed a lawsuit claiming his employer discriminated against him because of his disability in violation of the NYHRL and the NYCHRL. Both of those laws prohibit employers from firing an employee because of a disability if the employee can perform his or her job with a reasonable accommodation. Depending on the circumstances, time off can be a reasonable accommodation for a disability.

The trial court dismissed Mr. Romanello’s failure to accommodate claims under both the NYHRL and the NYCHRL. Mr. Romanello appealed, and his case eventually made its way to the New York Court of Appeals.

The Court of Appeals ruled that under New York State law an indefinite leave of absence cannot be a reasonable accommodation for a disability. This is consistent with how New Jersey has interpreted the New Jersey Law Against Discrimination (LAD).

In contrast, the Court of Appeals explained that under the New York City Human Rights Law there is no type of accommodation that is “categorically excluded from the universe of reasonable accommodation.” As a result, depending on the circumstances, an indefinite leave of absence could be a reasonable accommodation under the NYCHRL.

The Court concluded that Mr. Romanello had requested an indefinite leave of absence because his lawyer did not indicate when he expected to return to work, but instead indicated he needed an “indeterminate” leave of absence. As a result, it agreed that his claim under the NYHRL was properly dismissed. However, it reinstated his claim under the NYCHRL since he could be entitled to an indefinite leave of absence as a reasonable accommodation since the NYCHRL consistently has been interpreted to be broader than the NYHRL and the Americans with Disabilities Act (ADA). As a result, Mr. Romanello will be able to try to prove his claim under New York City law.

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In both New York and New Jersey, employers are required to provide reasonable accommodations to disabled employees to allow them to remain employed. A reasonable accommodation is a change or modification to the way your job is performed that allows you to remain employed despite having a disability. However, employers are not required to provide accommodations that would eliminate an “essential function” of the job.

Last month, the Court of Appeals for the Second Circuit ruled that although arriving at work on time is an essential function of most jobs, it is not an essential function of every job. The case, McMillan v. City of New York, was filed by Rodney McMillan. Mr. McMillan has a severe disability, schizophrenia. The medication he takes to treat his condition often makes him drowsy and sluggish. As a result, he is often unable to arrive at work until after 10 am. Nonetheless, he successfully worked as a case manager for the City of New York for almost 25 years.

New York City Employment Law.jpgHowever, New York City eventually disciplined Mr. McMillan because of his repeated lateness. In response, he requested reasonable accommodations including shifting his work hours back an hour, and allowing him to work during his lunch hour to “bank” time to make up for days on which he arrived late. NYC denied his request and eventually suspended him for 30 days without pay. Mr. McMillan then filed a disability discrimination lawsuit claiming NYC suspended him because he is disabled, and failed to accommodate his disability, in violation of the Americans with Disabilities Act (ADA), the New York State Human Rights Law (NYHLR) and the New York City Human Rights Law (NYCHLR).

The District Court dismissed Mr. McMillan’s claim. It ruled that arriving at work on time was an essential function of Mr. McMillan’s job. Accordingly, it found NYC was not required to grant the accommodations he requested since they would have eliminated an essential function of his job.

But on appeal the Second Circuit reversed the District Court’s ruling. It explained that although courts should give significant deference to an employer’s determination about which job functions are essential, that is only one factor a court should consider. For example, other relevant factors can include the written job description for the position, how much time the employee spends performing the job function, and the experiences of other past and present employees who have held the same or similar jobs with the employer.

The Second Circuit ruled that although arriving on time is an essential function of most jobs, it is not necessarily an essential function of every job. More specifically, it found unique facts about Mr. McMillan’s job that make it less clear whether arriving on time was an essential function of his job. For example, his department has a flex-time policy that allows employees to arrive at work anytime between 9:00 and 10:00 a.m. without being considered late. In addition, NYC permitted Mr. McMillan to arrive after 10:00 a.m. when necessary for more than a decade. Accordingly, the Court ruled that it should be left to a jury to determine whether arriving on time was an essential function of Mr. McMillan’s job.

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A federal judge in New Jersey recently dismissed an employee’s disability discrimination claim because she had signed an agreement shortening the statute of limitations to bring employment law claims against her employer. A statute of limitations is the deadline to file a lawsuit. Different legal claims have different statutes of limitations. For example, the New Jersey Law Against Discrimination (“LAD”) has a two year statute of limitations, meaning employees working in New Jersey ordinarily have two years to file discrimination lawsuits against their employers under the LAD.

The Facts of the Case

Ann M. Gavin worked for AT&T Services, Inc. She had several problems and pain in her feet and legs that made it difficult for her to walk, including a stress fracture in her right knee, psoriatic arthritis, and pustular psoriasis on her heel. She asked AT&T for permission to telecommute as a reasonable accommodation for her disability. She eventually resigned because the company would not let her work from home five days per week. She then filed a disability discrimination lawsuit under the LAD.

Statute of Limitations Disability discrimination case.jpgHowever, in 2007 Ms. Gavin signed an employment application which included a “Waiver of Statute of Limitations for Employment-Related Claims.” The waiver says that Ms. Gavin has to file any employment law claims against AT&T within 6 months after she knew or should have known she had a discrimination claim against the company. Her employment application also says it must be interpreted under Illinois law.

The Court’s Ruling

Based on the waiver provision in Ms. Gavin’s employment application, in Gavin v. AT&T Services, Inc. the District Court dismissed her claim under the LAD because she waited more than 6 months after she resigned to file her lawsuit. Applying Illinois law, the court rejected Ms. Gavin’s argument that her employment application was not a contract, even though it expressly says it is not intended to create an employment contract. The Court also ruled that Illinois law does not prevent agreements that shorten a statute of limitations, as long as the shorter period is reasonable.

Fortunately, this decision is not a binding precedent, and does not interpret New Jersey Law. However, it still is concerning since it encourages companies to require employees to shorten the time to file employment discrimination lawsuits. This is a potential problem since employees often have little or no choice but to sign anything the company requires for them to get hired. However, shortening the deadline to bring a discrimination lawsuit would cause many employees to lose their right to file a lawsuit, since they often do not know or remember what they signed when they were hired. It also would discourage employees from trying to negotiate employment law claims before they have to file lawsuits, since they would have much less time to attempt to negotiate.

The Lesson of the Case

It is almost always a good idea to discuss your potential employment law claims with an employment lawyer sooner than later. Even when the statute of limitations is not an issue, there are other advantages to acting quickly. For example, there are sometimes ways to resolve disputes with your company before you get transferred, disciplined or fired. Further, the longer you wait to assert your legal rights, the more likely key witnesses will have moved out of state or their memories will have faded. Contact Rabner Allcorn Baumgart & Ben-Asher if you have experienced discrimination, harassment, or retaliation at work in New Jersey or New York.

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In two previous articles, I discussed the case of Thomas Bowers, an Information Technology Analyst who successfully appealed his race discrimination claim and his retaliation claim against the New Jersey Judiciary. Mr. Bowers was also successful on his appeal of his claims that the judiciary forced him to resign by refusing to provide him a reasonable accommodation for his disability, in violation of the New Jersey Law Against Discrimination (LAD).

Mr. Bowers claims he experienced mental and physical distress as a result of the race discrimination, harassment, and retaliation he experienced at work. His doctor diagnosed him with Anxiety Disorder, and suggested that he take medical leave from June 6 to July 1, 2007. Mr. Bowers’ doctor subsequently extended his medical several times, and ultimately indicated Mr. Bowers would be ready to return to work on October 1, 2007.

On August 30, 2007, the Judiciary warned Mr. Bowers he was about to exceed his 12 weeks of protected FMLA leave. It told him he could extend his leave of absence by using his vacation time, but that he would run out of vacation time on September 6. The Judiciary warned Mr. Bowers that if he did not return to work by September 10, it would consider him to be on “an unauthorized leave of absence,” and he would be subject to discipline.

On September 4, Mr. Bowers’ lawyer informed the Judiciary that Mr. Bowers would not return to work until October 1. The Judiciary responded that it expected him to return to work on September 10, and repeated that he would be subject to discipline if he did not return to work by that date. The Judiciary claimed it had “experienced significant operational hardship during his absence,” and could not accommodate his disability as a result. The Judiciary subsequently fired Mr. Bowers, effective September 10, 2007, because he had failed to return to work.

The Appellate Division concluded that a jury could reasonably conclude that the Judiciary failed to provide Mr. Bowers a reasonable accommodation for his disability, in violation of the LAD. It noted that Monmouth County did not post Mr. Bowers’ vacant position until October 2008, and did not fill his position until January 20, 2009. It is unclear why the Judiciary could not have accommodated Mr. Bowers’ disability by placing him on an unpaid medical leave through the end of September, and allowing him to return to work on October 1. If it had done so, his position would have been vacant for only 3 weeks, instead of remaining vacant until January 20. The Court noted that although the Judiciary claims budgetary constraints prevented it from replacing Mr. Bowers’ sooner, a jury might reach a different conclusion. Accordingly, it found that the evidence could support a claim of failure to accommodate a disability in violation of the LAD.

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Recently, the United States Court of Appeals for the Third Circuit decided a case with an important lesson for employees requesting time off due to a disability, and the employment law attorneys who represent them. Specifically, in Prigge v. Sears Holding Corp., the Third Circuit dismissed an employee’s disability discrimination case on the basis that the employee was fired for failing to provide all of information his employer requested about his medical absences, and lied to the company about his disability. The Third Circuit is the federal court that handles appeals from the District of New Jersey.

John Prigge worked for Sears Holding Corp., as a store coach, from April 2007 through February 2008. Mr. Prigge was diagnosed with bipolar disorder. He began feeling ill in December 2007, and took at least two days off from work and had to leave work early on several other occasions. However, he lied to his supervisors by claiming he needed the time off for radiation treatment due to a recurrence of his prostate cancer.

Mr. Prigge was subsequently hospitalized for a week in late January 2008 because his depression had gotten worse and he was having suicidal thoughts. When he was released from the hospital, he contacted his supervisor and told him he had been absent because he suffers from bipolar disorder and had been at a mental health hospital. Mr. Prigge’s boss told him he could not return to work until he submitted doctor’s notes from both the hospital and the physician who had treated his prostate cancer. The next day, Mr. Prigge admitted to his boss that he had not actually undergone prostate cancer treatment in December 2007 or January 2008.Third Circuit Court of Appeals.jpg

When Mr. Prigge submitted the two doctor’s notes that his boss had requested, his boss told him he could return to work on February 11, 2008. However, when Mr. Prigge returned to work as scheduled, the company sent him home and told him he needed to submit additional medical certifications. Mr. Prigge subsequently received a warning letter from Sears saying he had not provided medical releases explaining all of his unexcused absences. However, Mr. Prigge did not submit the additional certification Sears had requested. Accordingly, on February 26, 2008, Sears fired him.

Mr. Prigge then sued Sears, claiming it fired him in violation of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state law. The trial court dismissed his case in its entirety. He then appealed his disability discrimination claim to the Third Circuit. In an unpublished opinion, the Third Circuit affirmed the dismissal of Mr. Prigge’s case because he admitted he had not submitted all of the doctor’s notes Sears had requested. The court also noted that Sears had the right to fire him for lying about the reason he needed time off in December 2007.

The Prigge decision is unpublished, so it is not a binding legal precedent. However, it highlights some of the potential dangers employees face when they ask for time off or other reasonable accommodations for a disability. For example, employees are often caught between the risks of (1) disclosing too much information about their medical conditions, and losing their medical privacy and risking harassment or retaliation because of their disability, and (2) providing false or incomplete information, and either having their requests denied or getting disciplined or fired as a result.

Deciding how much information to provide your company about your disability can be a very difficult and important decision. That is especially true if your disability is a mental illness, or another medical condition that is misunderstood or may carry a stigma. As a result, it can be extremely important to speak to an experienced employment lawyer before you request time off from work or ask for another reasonable accommodation for a disability.

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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.

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New York’s Appellate Division recently recognized that a disabled employee working in New York may be entitled to take extended medical leave under the New York State and New York City Human Rights Law.

The case involved Deborah Phillips, a civil service employee for New York City’s Department of Homeless Services (DHS). After Ms. Phillips had worked for DHS for 18 years, she took a 3 month medical leave for a serious medical condition, stage III breast cancer. Ms. Phillips asked her employer to extend her medical leave for a full year. DHS denied her request because she had exceeded her entitlement to 12 weeks of leave under the Family and Medical Leave Act (FMLA), and was ineligible for additional unpaid medical leave under the Department’s policy. DHS told her that if she did not return to work by October 30, 2006, the date on which she originally agreed to return to work, she would be subject to disciplinary action, or fired.

Ms. Phillips then asked DHS if she could take any additional medical leave. The City denied her request, again telling her that if she did not to return to work by October 30, she would be fired and would lose her medical benefits. Ms. Phillips did not return to work, and DHS eventually fired her.

Ms. Phillips sued, claiming New York City denied her reasonable accommodations for her disability and fired her because of her disability, in violation of the New York State Human Rights Law and the New York City Human Rights Law. She sought to be reinstated to her job with DHS, damages for her lost salary and benefits, and punitive damages.

The trial court dismissed Ms. Phillips’ case, ruling that her cancer was not a “disability” under either the New York State or New York City Human Rights Law, but even if she was disabled she could not prove her claim because she admitted she could not perform the essential functions of her job, even with a reasonable accommodation. In particular, the court found Ms. Phillips had asked DHS to hold her job open “indefinitely,” which was not a reasonable accommodation under either the New York State or the NYC Human Rights Law.

But New York’s Appellate Division disagreed. On July 28, 2009, it reversed the trial court’s decision dismissing Ms. Phillips’ case, finding she had set forth valid claims of disability discrimination and failure to accommodate disability under New York State’s and New York City’s anti-discrimination laws.

Under the New York State Human Rights Law, a reasonable accommodation is an action that allows an employee to perform the essential functions of her job. Reasonable accommodations can include providing an accessible work site, acquiring or modifying equipment, providing support services for a person with impaired hearing or vision, restructuring a job, or providing a modified work schedule, as long as doing so would not impose an undue hardship on the business.

The appellate court found it was improper for DHS to deny Ms. Phillips’ request for an extended medical leave based on its policy, without engaging in an individualized “interactive process.” Specifically, DHS should have talked to Ms. Phillips to clarify her needs, and to consider its own business needs, in an effort to find an appropriate reasonable accommodation.

The Appellate Division ruled that, under both the State and City Human Rights Law, a company’s failure to engage in the interactive process, by itself, is a violation of law. This is different from the federal anti-disability discrimination law, the Americans with Disabilities Act (ADA), and many state laws, including the New York Human Rights Act (NYHRL) and possibly the New Jersey Law Against Discrimination (LAD). Under the ADA and the LAD, in order to prove a claim based on their employer failing to engage in the interactive process, employees must identify a reasonable accommodation that would have permitted her to perform the essential functions of her job.

New York’s Appellate Division also disagreed with the lower court’s conclusion that Ms. Phillips had requested an “open-ended” medical leave, since she later asked for any additional medical leave. But it ruled that if Ms. Phillips had needed a one-year extension to her leave, DHS might have been required to grant her that much time off to recover from surgery for her breast cancer. It noted that, in many circumstances, a request for a one-year medical leave would not be reasonable. However, it refused to conclude that a request for one year off for a disability can never be a reasonable accommodation. Rather, the determination whether an accommodation is “reasonable” must be made on an individual case-by-case basis to decide whether the accommodation will be effective, and whether it would cause an undue hardship to the employer.

The Court interpreted the right to accommodations for disabilities under the New York City law even more broadly. It indicated that the New York City Human Rights Law requires employers to provide employees accommodations, rather than reasonable accommodations. As a result, the Court concluded that under New York City law employers must provide accommodations to disabled employees even if the accommodation will not allow the employee to perform the essential functions of their jobs. Rather, employers must provide any accommodation unless the employer can prove the accommodation would cause it an undue hardship.

Accordingly, the Appellate Division sent Ms. Phillips’ case back to the trial court to give her an opportunity to prove her disability discrimination and failure to accommodate claims.

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