Articles Posted in Reasonable Accommodations

A recent case out of the District of New Jersey provides a good example both of an employee’s right to a reasonable accommodation for her disability, and the employer’s obligations once an employee requests one.

Penelope Bertolotti worked for AutoZone, Inc. in its human resources department. Ms. Bertolotti suffers from a disability, gastroparesis, an incurable disease that impacts her ability to digest food and beverages. As a result, she wears a pacemaker to help with her digestion.

In October 2012, Ms. Bertolotti took a two week medical leave due to her illness. She returned to work for approximately one week, but then needed to go out on another medical leave.

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.

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.

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.

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.

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.

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

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.).

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