New Jersey Court Analyzes Time Off as Reasonable Accommodation for Disability

Under the New Jersey Law Against Discrimination (“LAD”), time off can be a reasonable accommodation for a disability as long as the time off sought is reasonable.  A recent decision from the District of  New Jersey provides a good example of how Courts analyze this issue at the early stage of a case, as well as a dispute about the employee’s ownership interest in the business.

Michaela Wark worked for J5 Consulting, LLC as a senior consultant in New Jersey.  In June 2020, Michael Johnson, who is the Chief Executive Officer and an owner of J5, told Ms. Wark that he was promoting her to a Partner of J5 and making her a 5% owner of the company.

Mr. Johnson provided Ms. Wark a letter confirming her promotion and 5% ownership, which states that she would lose her ownership rights if she was “fired for gross negligence or misconduct.” The letter also say Ms. Wark “must be employed by the company six months prior to sale for the rights of ownership to apply.”

Employee fired after chemotherapy.Fifteen months later, in September 2021, Ms. Wark was diagnosed with a “clear cell ovarian tumor on her right ovary” that had ruptured, and underwent emergency surgery.  In October, she began chemotherapy treatment, which had to be paused for two additional emergency surgeries.  Ms. Wark resumed chemotherapy in December 2021.  Her treatments were completed by the end of January 2022.

On May 18, 2022, Ms. Wark submitted a doctor’s note that indicate she was incapable of working “at this time or for the foreseeable future.”  On May 20, 2022, she told J5 that she expected to be able to return to work in September 2022 unless her scans scheduled for June 22, 2022 showed a problem.  On May 31, 2022, J5 fired Ms. Wark.

Ms. Wark filed a lawsuit against J5 and Mr. Johnson, claiming they engaged in disability discrimination in violation of the LAD and breached the contract making her a 5% owner.  The defendants filed a motion to dismiss, claiming Ms. Wark failed to assert a valid legal claim.

With respect to Ms. Wark’s disability discrimination claim, J5 argued that Ms. Wark had requested an indefinite leave of absence since her May 18, 2022 doctor’s note said she could not work “for the foreseeable future.”

In Wark v. J5 Consulting, LLC, the Judge recognized that, while time off from work can be a reasonable accommodation for a disability, an indefinite leave of absence cannot.  The Court concluded that, since Ms. Wark told J5 she expected to return to work in September, it was too early in the case to determine whether she was could perform her job with a reasonable accommodation of three or four more months off from work.  Accordingly, it concluded that Ms. Wark had alleged sufficient facts to support her discrimination claim, which is all that is necessary at the preliminary stage of a case, and thus denied J5’s motion to dismiss her disability discrimination claim.

J5 also sought to dismiss Ms. Wark’s breach of contract claim on the basis that the ownership letter states that she “must be employed by the company six months prior to sale for the rights of ownership to apply.”  It argued that her ownership rights did not apply since the company was not sold within six months after it fired her.  In contrast, Ms. Wark argued that the letter said she would lose her ownership rights if J5 fired her for gross negligence or misconduct, or if the company were sold before she had worked for it for six months after she received the letter.

The Court concluded that the agreement is ambiguous, meaning it is subject to more than one reasonable interpretation of what “must be employed by the company six months prior to sale” means. Accordingly, it denied J5’s motion to dismiss her breach of contract claim.

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