Employees with a disability which requires a reasonable accommodation to allow them to do their job, should ask for the accommodation in writing. This puts the employer on notice of their legal duty to engage in an interactive process with the employee to be able to provide the accommodation. The writing is evidence that the employer has been given notice. An employer-employee interactive process is necessary when the employer cannot immediately provide the articulated accommodation requested. For example, teacher with diabetes who requests that her lunch period be moved from 3 pm to 11:30 am so as to not suffer a hypoglycemic event, has a clearly defined request for an accommodation that the employer can understand. There may be no need in some situations for the employer to engage in the interactive process if the employer can provide the requested accommodation.
The New Jersey Law Against Discrimination (LAD), N.J.S.A. §§ 10:5-1 to 10:5-49, prohibits employment discrimination based on a disability. Although the statute does not explicitly address a reasonable accommodation requirement or claim, New Jersey courts have uniformly held that the statute nevertheless requires an employer to reasonably accommodate an employee's disability. New Jersey Courts frequently follow federal law in interpreting NJ laws. In deciding disability discrimination cases filed under the LAD, NJ courts look to language in the Federal Americans with Disabilities Act for guidance as to the reasonable accommodation requirement.
When Employer Is Required to Engage in the Interactive Process to Make a Reasonable Accommodation
An employer is required to accommodate a "known" disability of an employee. This requirement may be triggered by a request from the employee with a disability, who frequently will be able to suggest an appropriate accommodation. The request should be made in writing so that the employer may not later claim it had no knowledge of the request for a disability. You may make this request initially to whomever you are most comfortable with such as a supervisor or HR.
Make your request in writing and use the phrase: “I am requesting a reasonable accommodation for my disability under the New Jersey Law Against Discrimination and the ADA.” The writing creates a clear record of your request for an accommodation and helps your employer know that your request should be taken seriously.
If the employee does not request an accommodation, the employer is not obligated to provide an accommodation. (The exception is a situation where the employee’s known disability impairs his/her ability to effectively communicate a need for an accommodation that is obvious to the employer. However, the employer’s knowledge in this situation could be actively disputed.) The nature and extent of a disability, the employee’s job requirements, the size of the employer and whether there is a cost involved, would enter into what is considered “reasonable” in each case; there is no bright line rule so every accommodation must be made on an individual basis.
Your Employer Has the Right to Request Limited Medical Documentation
If your initial articulated request for an accommodation is not granted by your employer, and you begin to engage in an interactive process with your employer, your employer may ask you questions regarding your disability, functional limitations, and your needs to help identify an effective accommodation. Your employer has the right to request limited medical documentation of your disability and that you need a reasonable accommodation. It is helpful if your doctor can put into a letter the nature of your disability and the accommodation that is needed for you to continue in your job.
An employer’s request for medical documentation should be narrowly tailored to your accommodation request. Your employer should not ask for a complete medical history. If your employer asks you to sign a release for all your medical records, offer instead to provide a letter from your doctor stating the nature and extent of your disability, how it interferes with your job and why the accommodation is needed.
Some Employers May Try to Wear You Down Rather than Provide the Reasonable Accommodation
If an employer is making you jump through endless hoops before they agree to give you a reasonable accommodation, they may be illegally pressuring you to resign. Such a hostile work environment is actionable. An adverse employment action such as a termination or demotion is not a required element for a failure-to-accommodate a disability claim under the Law Against Discrimination, N.J.S.A. §§ 10:5-1 et seq. The New Jersey Supreme Court has held that a requirement that an employee suffer an adverse employment consequence is not consistent with the obligation of employers to reasonably accommodate an employee with a disability. N.J.A.C. 13:13-2.5(b).If you feel impeded by having to provide medical documentation and want to disengage in the interactive process, remember it could hurt a discrimination claim because the interactive process places obligations on both you and your employer. Therefore, you should respond to all reasonable requests to continue to engage in the interactive process.
If You Quit Your Job, You May Lose Right to Prevail in a Lawsuit.
If you quit your job, you may lose your right to prevail in a lawsuit. If you are thinking of quitting, or you think you will be fired, you should know that you may lose your right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of quitting, or think you will be fired, you should contact this office immediately to discuss your options in the safest way for you. I am an aggressive and compassionate employment law attorney who is experienced in representing private and public employees with disabilities.
If You Complained about What You Reasonably Believed to Be Your Employer’s Illegal Practices and Your Employer Retaliated
If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced and compassionate employment attorney who will be aggressive about enforcing your rights. If you believe you are being discriminated at work because of a disability, or your 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.
If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation.
What You Can Do
I am an aggressive and compassionate employment law attorney who is experienced in successfully representing employees who suffered illegal disability discrimination. If you find yourself in a situation with inadequate job security because of the aforementioned issues, if you are thinking of resigning, or have been fired or think you will be fired, it is important that you consult with an attorney who is experienced in discrimination.
I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of age, race, sex, disability, sexual orientation, and other discrimination. If you think you are being pushed out of your job or retaliated against, you should contact this office immediately for a free consultation.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and in every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.