The Federal Americans with Disabilities Act, the New Jersey Law Against Discrimination and the New Jersey Pregnancy Discrimination and Accommodation Law each impose significant obligations on employers, who are required to provide reasonable accommodations to employees.
There is a considerable amount of confusion on the part of many New Jersey employers as to their obligation to provide reasonable accommodations for those who are disabled or pregnant. As of January 2014, with the passage of the New Jersey Pregnancy Discrimination and Accommodation Law, pregnancy is now its own protected class and pregnant employees are entitled to accommodations regardless of whether they suffer from a disability relating to the pregnancy. This FAQ will address at a basic level the most important aspects of employment law as it pertains to reasonable employee accommodations. Of course, don’t miss our other posts about protecting against employee lawsuits, employer compliance with the Affordable Care Act (Obamacare), employee privacy obligations and other employment hiring practices.
Q: What is a reasonable accommodation?
A: Under the Federal Americans with Disabilities Act (“ADA”) or the New Jersey Law Against Discrimination (“NJLAD”), a reasonable accommodation is defined as a practical change to a job description or work situation needed to support the employment of a qualified disabled person or someone with a special need in that capacity. Reasonable accommodation also refers to modifications made by an employer to assist qualified disabled persons in enjoying the same rights and privileges that other employees of an equal level enjoy.
Q: What is a disability?
A: A disability under the ADA (which is constantly expanding and is considered a fairly universal definition from an employment standpoint) includes impairments (mental or physical) which substantially interfere with one or more major life activities such as walking, bending, sitting, pushing, pulling, holding, stooping, climbing a ladder, or stairs, running, jogging, breathing, shopping, dressing, bathing, eating, concentrating, listening, communicating and so forth. Even episodic conditions (i.e., epilepsy, migraine headaches and so forth) can be deemed disabling if, when active, such conditions interfere with one or more major life activities.
Q: Who has to request or propose the accommodation?
A: The employee must request the accommodation, and the accommodation must be communicated as clearly and specifically as possible. Specificity with regard to the accommodation is crucial, because a vague request such as a lateral transfer, etc. can be easily (and legally?) denied by the employer saying there are no such positions.
Q: What are the employer’s obligations once an accommodation has been requested?
A: Once an employee requests an accommodation, both the employer and employee have to engage in what is known as an “interactive process.” That means that the employee and the employer must actively work together on a solution to come up with an accommodation. Unilateral demands on the part of the employee or unilateral denials on the part of the employer are not interactive and would violate the requirements of the ADA or NJLAD.
Q: What are the limits on the accommodation that must be provided to qualifying employees?
A: The accommodation must be reasonable. That means that the employee must be able to perform the functions of his or her job with the accommodation and without causing undue hardship. Undue hardship means an action that would be unduly costly, excessive, substantial or disruptive in relation to the size, resources, nature, and structure of the employer’s operation. For example, an outside sales representative who is required to travel the majority of the time to secure business opportunities or meet with clients and who cannot perform job functions from an office location cannot claim as a reasonable accommodation to be permitted to work from home for the remainder of his/her disability or employment.
Q: Does a New Jersey employer need to provide a reasonable accommodation in New Jersey if it has less than 25 employees?
A: Yes. Although the reasonable accommodation requirements of the ADA only apply to employers who employ 25 or more employees, the NJLAD also requires employers to provide reasonable accommodations for disabled and pregnant workers regardless of the number of employees they have.
Q: Does a New Jersey employer need to provide a reasonable accommodation to a pregnant worker who is not disabled?
A: Yes. Under the New Jersey Pregnancy Discrimination and Accommodation Law (which became effective as of January 21, 2014), employers who know or should know that an employee is pregnant or recovering from pregnancy cannot discriminate against the employee in terms and conditions of employment.
Prior to the law’s enactment, pregnancy was not considered as a protected class under the NJLAD (meaning that an employee could not sue for discrimination under that law) unless there were complications associated with the pregnancy that could cause the pregnancy to come within the definition of a disability. The new law requires employees to treat pregnant employees no less favorably than non-pregnant employees in their employment policies even if they are not suffering from any pregnancy related complications.
The law also specifically requires employers to provide pregnant employees with reasonable accommodations relating to the pregnancy upon the advice of the employee’s physician. The law provides a non-exhaustive list of examples of accommodations which include bathroom or water intake breaks, rest breaks, assistance with manual labor, job restructuring or modifying work schedules and temporary transfers to less hazardous or strenuous jobs. As in the case of reasonable accommodations for disabled employees, employers must grant the employee’s request for a pregnancy accommodation unless doing so would cause an undue burden upon the their operations.
This FAQ merely scratches the surface of the requirements imposed upon all New Jersey employers to provide reasonable accommodations to their employees. Needless to say, it is incumbent upon all New Jersey employers to review their employment policies with counsel to insure that they are compliant with this area of employment law.