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Tuesday, December 8, 2020

NJ Employer Will Not Accommodate My Disability to Allow Me to Keep Working

NJ employees who are disabled sometimes hit stone walls when they ask their employer for a disability accommodation that will allow them to keep working. Some employers either deliberately or unknowingly do not understand the law and the standards to be applied.

First, in New Jersey, all employers, public and private, under the NJ Law Against Discrimination (LAD) are required by law to provide reasonable accommodations for an employee’s disability to allow them to keep working. This is true whether the disability is temporary or permanent. These cases frequently turn on what is considerable to be “reasonable” accommodation standards for an employee’s disability accommodation.

Under the NJ LAD, whether the employee’s requested reasonable accommodation would cause an undue hardship of the employer’s business is determined on a case-by-case basis. What is “reasonable” is not strictly defined in statute, but case law has defined “reasonable” as an accommodation that would not impose an undue hardship on the employer or that would not result in significant expense or difficulty in running the business.

Second, the New Jersey LAD applies to employers with as few as one employee, unlike the Federal law,  Americans with Disabilities Act (ADA), which only applies to employers with at least 15 employees.

Third, the term “disability” is broader under New Jersey LAD than that of the Federal Americans with Disabilities Act.

Disability under NJ LAD includes:

Physical impairments:

Physical disability, infirmity, malformation, or disfigurement. Physical illness or disease, and

Non-physical impairments:

Mental, psychological, or developmental disability that either 1) prevents the normal exercise of any bodily or mental functions or 2) can be shown to exist through clinical or diagnostic tests.

Paralysis, amputation, epilepsy, visual/hearing impairments, speech impediments, AIDS, HIV infection, and blood traits.

Note: The New Jersey LAD also prohibits discrimination based on a “Perception” of Disability (the employer thinks you are or were disabled even if you are/were not) and on any disability that you might get in the future.  As an example, cancer survivors who are no longer disabled still may suffer discrimination by their employers who perceive them to remain to be disabled.

I have successfully represented persons with cancer for nineteen years and have been successful in obtaining monetary compensation for victims of employment discrimination. I found that a failure to accommodate is one of the main types of discrimination that cancer patients face, along with “perceived” disability once the cancer is in remission.

To defeat a claim of Failure to Accommodate, the employer would have to prove that it would cause  an "undue burden" or "undue hardship" on the employer to "reasonably accommodate" the employee for the disability.  But what exactly is an "undue burden"?

When employers take advantage of this "undue hardship" defense, some of the factors the court will consider to determine if it is valid in any particular case are the nature of the business, including structure of the workforce and the needed skill level of the employees, the size of the business in terms of the number of employees, the employer’s budget, the nature and cost of the accommodation needed. The court will also look at whether the requested accommodation would allow the employee to continue in the essential functions of his position.

In NJ LAD cases, to the extent the Federal standards are useful and fair, they will be applied in the interest of achieving a degree of uniformity in the discrimination laws. Accordingly, when interpreting the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 to -49, New Jersey Courts frequently look to federal anti-discrimination cases as a source of interpretive authority.

According to recent suggested changes in EEOC guidelines, under Federal law, the employer has an easier defense to prove “undue hardship” under Federal law, Title VII, as to religion accommodation for employees, than the defense the employer must prove for “undue hardship” under Federal law, the Americans with Disabilities Act,  to provide a reasonable accommodation for employees with a disability.  The US Supreme Court has ruled that a lower standard should be applied as to what constitutes an “undue hardship”  under Title VII as to religion accommodations than the standard applied for disability accommodations under the Americans with Disabilities Act (ADA).

“Undue hardship” on an employer for not accommodating the employee’s request for a religion accommodation, has been  defined by the Supreme Court as “more than a de minimis cost”. This is a much lower standard than the standard for an “undue hardship” defense to be applied in disability discrimination ADA cases. Under the discrimination ADA cases, to satisfy than the “undue hardship” defense for not providing a reasonable accommodation for a disability, the employer must demonstrate that providing the accommodation for the disability would cause “significant difficulty or expense” for the employer.

Under the New Jersey Law Against Discrimination, Reasonable Accommodations, Undue Hardship:

An employer must make a reasonable accommodation to the limitations of a handicapped employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. N.J.A.C. 13:13-2.5(b).

The undue hardship standard under the NJ LAD therefore is harder burden for the discriminating employer to prove, than the, “it’s more than a de minimis cost” standard. In order to defeat a Failure to Accommodate claim, the employer must demonstrate that providing the accommodation for the disability would result in significant expense or difficulty in running the business.

By filing a discrimination case or failure to accommodate claim in New Jersey Superior Court under the New Jersey Law Against Discrimination rather than filing in Federal Court under Federal statutes, employment discrimination plaintiffs save time: they do not have to first file and exhaust time consuming administrative procedures before they get a Court to hear their case. In New Jersey, an employment discrimination plaintiff may file his discrimination lawsuit directly and more expeditiously in NJ Superior Court.

Don’t Sit On Your Rights

I am an aggressive and compassionate employment law attorney who is experienced in successfully representing public and private employees who were subjected to illegal discrimination, harassment and retaliation, and denied reasonable accommodations for their disabilities in employment. I only represent employees and never represent employers. I have been successful in obtaining monetary compensation for victims of employment discrimination.

Even if you have not been fired, but you think you will be fired or are thinking of resigning, or have been denied accommodations, it is important that you consult with an attorney who is experienced in discrimination law. If you have experienced discrimination at work, call our offices 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 southern, central, western and northern NJ to meet with clients.



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