Unverified and subjective concerns that an employee’s disability raises a safety issue cannot be a basis for termination. The New Jersey Law Against Discrimination as well as Federal law prohibits public and private employers from discharging qualified workers based on actual or perceived disabilities which they assume poses a harm to the disabled employee or to other workers or clients.
Don’t sit on your rights. I have successfully represented employees with disabilities who were experiencing illegal discrimination. If you are being disparately on your job or were fired because you have a disability or were perceived to have a disability. You should call this office today to contact us for a free consultation.
If the Employee’s Disability Impairs Their Ability to Work
If an employee has a disability that impairs their ability to work safely if they do not have an accommodation to assist them, then the employee should ask the employer in writing to provide such an accommodation. The written request from the employee should be accompanied by a doctor’s note that states the disability, what is required for a reasonable accommodation, why it is needed, and requesting a specific accommodation to allow the employee to keep working.
The employee should keep a copy of the request and doctors note for oneself and serve it on the Head of HR or whomever the employee directs such communication to be made. It should also be served on the immediate supervisor. By way of example, a reasonable accommodation for someone for someone who has difficulty climbing stairs when there is no elevator would be a request that they be transferred to a first-floor office. Depending on the nature of a disability or disease, another example could be, allowance to closer bathrooms; or for those with diabetes, being allowed to eat during non-scheduled breaks, etc.
Once presented with a request for an accommodation for the disability, an employer must engage with an interactive process with the employee, and conduct an individualized assessment of the worker’s ability to safely perform the functions of the job, if provided with the requested accommodation. The assessment must be based on the best available objective evidence, not a spurious assumption. The employer must consider whether any reasonable accommodation would sufficiently reduce the risk. Under the NJLAD, an employer may not simply fire an employee based on an unverified, subjective concern that his disability raises a safety issue for himself or others.
An employer’s decision cannot be predicated on the basis of general assumptions that a particular handicap would create a hazard to the safety or health of such individual, other employees, clients or customers.
Less common, is when the employer believes the disability poses a risk of harm to other employees. The employer should not make this decision based on the fears voiced by other employees, but should conduct its own assessment. The New Jersey Supreme Court has made it very clear that when an employer believes an individual’s disability creates a genuine workplace safety risk to other workers, that belief must be objectively reasonable and based on actual evidence. By way of example, fears raised by other employees, fears which have no basis in fact, may arise if an employee has a seizure disorder, such as epilepsy. Unfounded fears by co-workers that they in some way may be harmed by a person having a seizure, may contribute to illegal and discriminatory actions of the employer.
The NJ Supreme Court heard this exact issue in a case brought by an employee against his former employer, a supermarket, who terminated him because they thought his epilepsy posed a danger to other workers if he had a seizure while in the workplace. Other employees had complained to the employer that they feared for their own safety because of having to work in close physical proximity with someone with epilepsy, and the employer terminated his employment.
In this matter, The NJ supreme Court had to decide whether the employer reasonably concluded that the epilepsy of its employee presented a materially enhanced risk of harm to him or other employees. It held that such an employer's termination of employment must be based upon an objective standard supported by factual or scientifically validated evidence. The Court held that the employer had wrongfully and ignorantly assumed that the seizure disorder would pose a risk of harm to other employees. The Court noted that a review of the history of epilepsy provides a salient example that fear, rather than the seizure disorder itself, is the major impetus for discrimination against persons with this disability.
As with all disabilities or perceived disabilities, fear, fear of posing a safety risk or fear of not being as productive as one without a disability, rather than the disability itself, is the major impetus for discrimination against persons with the disability.
Don’t Sit on Your Rights - 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, you should call this office today to contact us for a free consultation
I am successful in bringing employee lawsuits against governmental entities and private employers and recovering money for victims of disability, age, race, sex, sexual orientation, and other discrimination. If you think you are being discriminated against, pushed out of your job or retaliated against, you should call this office today to contact us for a free consultation, I accept discrimination and whistleblower cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
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 every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.