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Thursday, December 20, 2018

NJ Employee’s Hidden Disability

Disabilities under the New Jersey Law Against Discrimination (NJLAD) may be visible or hidden, physical or non-physical. A disabled person's companion dog is not necessarily a service dog under the statute. Disabilities such as a heart condition or breast cancer may not be apparent to a supervisor or onlooker. An employee who has a disability which requires an accommodation should notify the employer in writing about the disability and the accommodation required. This is particularly true when it is a hidden disability or when it is not readily discernible unless it is brought to one’s attention.

The term “disability” is not limited to severe, permanent or immutable disabilities. The NJLAD does not articulate the conditions that must be present for a person to be disabled under the statute, but the New Jersey Supreme Court and the Appellate Division have held that an employee is in a protected class under NJLAD if he suffers from any physical disability, disfigurement or malformation caused by birth defect, illness or injury. In a case against a hospital, the Court held that an employee who had cancer requiring the removal of an adrenal gland, kidney, lymph nodes, was handicapped even after recovery. Expert testimony is not necessarily required to prove a disability in Court. In some situations,  the treating physician’s medical records may suffice to prove disability.

Under the statute, N.J.S.A. 10:5-5 et al.,

 “Disability” means:

  • physical or sensory disability,
  • infirmity,
  • malformation, or disfigurement,

 \Which is caused by:

  • bodily injury, or 
  • birth defect, or
  • illness including epilepsy and other seizure disorders, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impairment, deafness or hearing impairment, muteness or speech impairment, or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device, or any mental, psychological, or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological, or neurological conditions which prevents the typical exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques
  • Disability shall also mean AIDS or HIV infection.

Not all companion dogs for a person with a disability are considered a “service dog” for purposes of the statute. The statute defines “Service dog” to mean any dog individually trained to the requirements of a person with a disability including, but not limited to

  • minimal protection work,
  • rescue work,
  • pulling a wheelchair or
  • retrieving dropped items.

A Service dog shall include a “seizure dog” trained to alert or otherwise assist persons with epilepsy or other seizure disorders.

An employer cannot make an accommodation for a hidden disability if it is not brought to their attention. Employers will often feign ignorance regarding an employee’s health status and fail to make inquiries regarding whether the employee may need an accommodation to remain employed.

If you are an employee with a disability, you have the right to have your employer make a reasonable accommodation for your disability to create conditions to allow you to remain employed.

What You Can Do

I am an aggressive and compassionate employment law attorney who is successful in bringing disability discrimination lawsuits and recovering money for workers who were subjected to discrimination.

If you believe you are being discriminated at work or the employer fails to provide a reasonable accommodation to allow you to remain employed, it is important for you to consult with an experienced employment law attorney. I am an employment law attorney who is experienced in representing private and public employees with cancer and other disabilities.

If you are being subjected to such unlawful workplace discrimination, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.

 



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