It’s illegal for an employer to discriminate against any current or potential employee because of a disability. This means that an employer can’t choose not to hire, to fire, or take other adverse employment action against a person because of their disability if they are otherwise able to perform the essential functions of the job “with or without accommodation.” But what does “accommodation” mean? What does an employer have to do for a current or potential employee with a disability?
What Is a “Disability” Under the Law?
An individual with a disability is one who “has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." 42 U.S.C.A. § 12102(2). Discrimination against workers with disabilities is illegal under the federal Americans With Disabilities Act (ADA) as well as the New Jersey Law Against Discrimination (NJLAD). These statues forbid discrimination based on an individual’s disability in nearly all aspects of employment, including hiring, firing, compensation, training, job assignments, promotions, fringe benefits (such as leave and health insurance), layoffs, retirement, and any other term or condition of employment. In New Jersey, if an employee ends their employment because of a disability, they are not disqualified from receiving state-based unemployment benefits.
When Is an Accommodation Required?
The “essential functions” of a job are the fundamental duties of a job, regardless of whether they constitute the largest share of an employee’s time. An employee who can’t perform the essential job functions even with reasonable accommodation isn’t considered qualified for the job and isn’t protected by discrimination statutes. If an employee is able to perform the essential functions of their job with or without accommodation, however, their employer must provide reasonable accommodations for impairments related to their disability that affect any aspect of their job functions.
Who Decides What Accommodation Is Reasonable?
An employee must request accommodations based on the advice of a medical provider and provide notice of the requested accommodation(s) to their employer. Once that notice is provided, the employer and employee must engage in an “interactive process.” This means they actively discuss what aspects of the job are problematic and need an accommodation. The employer must provide options for possible accommodations, while the employee must provide input as to what will work for her needs. The employer may offer to provide light duty, alternative assignments, the option to telecommute, disability leave, or unpaid leave to disabled employees. The employee is not necessarily entitled to the accommodation of their choice so long as the employer offers an accommodation in good faith that would fulfill the worker’s needs.
Does an Employer Have to Accommodate a Disability?
Whether or not an accommodation is reasonable is a balancing test, and it may not always be possible to accommodate an employee’s disability without creating an unreasonable hardship for the business or its other employees. Ideally, the employer and employee can devise an accommodation that meets the needs of the employee without creating an undue burden. If it is impossible to provide an accommodation without creating an undue hardship for the company, however, the employer may not be required by law to do so.
What Are My Options If I’ve Experienced Discrimination?
An employer may not penalize an employee for requesting or using an accommodation and is required to engage in good faith in the interactive process to attempt to find an accommodation that works for everyone. If you’ve been discriminated against or your employer has refused to accommodate you, you may have a claim for disability discrimination.
Victims of discrimination in New Jersey can file employment-related disability discrimination claims with two primary agencies. The Equal Employment Opportunity Commission (EEOC) handles discrimination claims under federal law, while the New Jersey Division of Civil Rights (DCR) handles discrimination claims under the NJLAD.
If you believe you’ve been the victim of disability discrimination, contact an employment attorney experienced in federal and New Jersey anti-discrimination laws. An experienced attorney can help you determine whether you may have a claim, and if so, help you decide the best way to proceed.