Reasonable Accommodations

John J. Sarno, Esq.Employers Association of New Jersey

www.eanj.org

PregnancyReligionDisability

The Laws

Title VII, Civil Rights ActAmericans with Disabilities ActNJ Law Against Discrimination

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EEOC Charges

51% discharge27% failure to make reasonable

accommodations11% harassment10% hiring1% other

20% of all EEOC charges are under ADA (4,600/yr)

85% of all charges filed by current employees

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Title VII, Civil Rights Act

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.

Applies to employers with 15 or more employees

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Title VII Amended with Pregnancy Discrimination Act

The term “because of sex” includes because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.

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Employers must treat “women affected by pregnancy the same as other employees not so affected but similar in their ability or inability to work.”

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Young v. UPSUS Supreme Court (2015)

A light duty policy available to employees with physical limitations caused by workplace injuries. Pregnant women is ineligible for light duty.

UPS says policy is neutral.

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Pregnant worker may show that policy is a “significant burden” and the burden outweighs the employer’s justification.

Does policy accommodate a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers?

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NJ Law Against Discrimination

It shall be an unlawful employment practice for an employer, because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, genetic information, sex, handicap (including “suffering from AIDS or HIV infection), or atypical heredity cellular or blood trait, or because of the liability for service in the Armed Forces of the US or the nationality or domestic partnership status, civil union status, gender identity or expression of any individual, to refuse to hire or employ or to bar or to discharge or require to retire from employment or to discriminate in compensation or in terms, conditions or privileges of employment

Applies to every employer regardless of size

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Pregnant Workers Protection Act

Amends NJ Law Against Discrimination to include pregnancy as a protected classification,

› Prohibits discrimination/retaliation› Requires workplace accommodations

Can not treat pregnant employee less favorably than another employee with the same ability or inability to work.

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Pregnancy Includes

Normal pregnancy, Medical conditions related to

pregnancy, Childbirth, Medical conditions related to childbirth

including recovery from childbirth

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Workplace accommodations for pregnancy related needs

Bathroom breaks Breaks for increased water intake Periodic rest Assistance with manual labor Job restructuring Modified work schedules Temporary transfer to less strenuous/hazardous work

Employee must request the accommodation based on the advice of her physician

Cannot be undue hardship on the business

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Title VII

Employers Must Accommodate Religious Practices, Unless To Do So Would Impose An Undue Hardship

Religious practices include observations as well as practices.

EEOC v. Abercrombie & FitchU.S. Supreme Court (2015)

Employer need not have actual knowledge of the need to accommodate. Employer may have to give favorable treatment.

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What is an "Undue Hardship?”

Title VII Employer may not be required

to bear more than a “de minimus cost” to accommodate.

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Title VII

Undue hardship includes overtime costs, requiring another employee to change shift, violation of a seniority policy, violation of a safety code.

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Effective January 3, 2008, all NJ employers must make efforts to accommodate employees’ religious beliefs and/or practices.

Applies to all employers regardless of size.

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NJLAD

Undue hardship means: unreasonable expense or difficulty unreasonable interference with safe

and efficient operations violation of seniority policy violation of collective bargaining

agreement

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Time off and shift changes could be a reasonable accommodation.

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Shift changes under NJ law

Premium pay-other than mandatory overtime pay, premium pay does not have to be paid if shift change is the result of a reasonable accommodation.

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When time off is granted, employer may require employee to make up the time “at some mutually convenient time.”

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If time cannot be made up, employer can charge paid time off, but not time designated as “sick leave.”

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Americans with Disabilities Act (ADA)

No [employer] shall discriminate against a qualified person with a disability…

“Disability” means a physical or mental impairment that substantially limits one or more major life activities

Impairments that interfere only in a minor way with life’s activities and that are short-term in nature are not disabilities.

NJ Law Against Discrimination (LAD)

…it is an unlawful employment practice to deny an otherwise qualified person with a disability the opportunity to obtain employment…

“Disability” means: Suffering from physical disability,

infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness, or

From any mental, psychological or developmental disability resulting from anatomical, psychological, physiological, or neurological conditions that either1. Prevents the normal exercise of any

bodily or mental functions, or2. Is demonstrable, medically or

psychologically, by accepted clinical or laboratory diagnostic techniques

No apparent limitation on definition

The ADA and the NJLAD

REQUIRE EMPLOYERS TO PROVIDE

“REASONABLE ACCOMMODATIONS”

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“Qualified person with a disability” means a person with a disability who, with or without a reasonable accommodation, can perform the essential functions of the job.

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“Reasonable Accommodation” may include:

1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; or

2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examination, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities

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Accommodations must be reasonable; should not impose an undue hardship

Case-by-case: Unduly costly Extensive Substantial Disruptive Fundamentally alters the nature or

operations of business

Employers must consider alternative accommodations

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The type of accommodation should be result of an “interactive process” between the employer and employee.

Generally, the employee must initiate the process, although treating physician or spouse can start the conversation. In cases where it is obvious that the employee is disabled and may need an accommodation, employer can initiate the process in good faith.

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During the interactive process, the employer can verify the employee’s disability. Options and alternatives are discussed.

The accommodation must be effective, not perfect.

Temporary “light” duty may be a reasonable accommodation.

Note: Under FMLA, employee on disability leave cannot be required to return to light duty.

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Raspa v. County of Gloucester(NJ Supreme Court, 2008)

Light duty should be considered on a temporary basis but there is no obligation to create a permanent light duty job.

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EEOC states that it is permissible to have a pool of light duty jobs available for worker’s compensation cases only.

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In October, 2008 the Equal Employment Opportunity Commission (EEOC) issued guidance that addresses the application of the Americans with Disabilities Act (ADA) to enforcement of workforce performance and conduct standards.

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An employee with a disability must meet the same performance/production standards as any employee as long as meeting standards is an essential job function.

Remember: In many instances an essential function can be performed in different ways.

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An employee who violates a work or conduct rule can be disciplined like other employees.

“My disability made me do it.”

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If the work or conduct rule is “job-related and consistent with business necessity,” discipline can be administered.

professional conductsafety rulesno drinking on premisesnon-harassment policies

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Selected Types of Accommodations for Psychological Disabilities

Short-term leave of absence Temporary modified work schedule Physical changes to environment, i.e.: room

dividers, partitions, lowering the volume or pitch of telephones, use of “white noise”

Adjusting supervisory methods, i.e. communicating in effective ways, more feedback, additional “face time” or more e-mail

Job coach or mentor Reassignment to a vacant position

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Adjusting schedules may be a reasonable accommodation

arrival or departure times periodic breaks

Employers generally do not have to accommodate repeated tardiness over an extended period of time, without notice.

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A reasonable accommodation may require preferential treatment of persons with disabilities but not

› Creating a job where none exists› Creating a stress-free environment› Violating a seniority policy which is uniformly

applied› Leaving a job open indefinitely› Violating a no rehire policy which is uniformly

applied

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Any employee can ask for a reasonable accommodation.

Employer can not retaliate.

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Questions?

Thank You