COVID, the Flu and the Law Against Discrimination

HNWEmployment Law

Covid19In a recent case handled by our office, a school district terminated a teacher in violation of the New Jersey Law Against Discrimination (LAD) based upon her disability of developing severe COVID-19 complications. The LAD prohibits employment discrimination on the basis of a disability. The Courts have uniformly held that the LAD requires an employer to reasonably accommodate an employee’s disability. Under N.J.A.C. 13:13-2.5(b), “unless it would impose an undue hardship on the operation of the business,” an employer must “make a ‘reasonable accommodation to the limitations of an employee … who is a person with a disability.'”

To establish a failure-to-accommodate claim under the LAD, a plaintiff must demonstrate that he or she (1) “qualifies as an individual with a disability, or is perceived as having a disability, as that has been defined by statute”; (2) “is qualified to perform the essential functions of the job, or was performing those essential functions, either with or without reasonable accommodations”; and (3) that defendant “failed to reasonably accommodate [his or her] disabilities.”

Although a person contracting COVID-19 with common cold or flu symptoms is not considered a disability, complications from COVID-19, such as pneumonia, being immunocompromised is recognized as a disability under the NJLAD. Thus, an employee who is disabled due to COVID-19 complications has the right to seek a reasonable accommodation from the employer that are necessary for the employee to be able to perform the essential functions of the job. A reasonable accommodation is a change in the matter in which the job is performed or the work environment that allows the employee to perform the job. Employers are required to consider granting reasonable accommodations before demoting or firing a person with a disability on the basis that the disability would preclude the person from performing his or her job.

If an employer does not engage in an interactive process with the employee in good faith to determine whether an employee can be granted a reasonable accommodation without undue hardship to the employer, the employer will be held liable for disability discrimination on the basis of its failure to accommodate. In order to demonstrate an employer failed to participate in the interactive process, a disabled employee must show: (1) the employer knew about the employee’s disability; (2) the employee requested accommodations or assistance for her disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

The interactive process requires the employer to engage in a timely, good faith conversation with the employee to determine effective reasonable accommodations for the employee, and determine what reasonable accommodations are necessary and are possible for the employee. The employer is required under the LAD to take the initiative to identify potential reasonable accommodations that could be provided to the employee to overcome the precise limitations of the employee resulting from his or her disability. The process must be interactive, that is, open communication between the employer and employee.

An employer is also required to grant an employee’s request for a reasonable accommodation unless the employer can show that the accommodation would impose an undue hardship on its business operations. The law also makes it an unlawful employment practice to deny an employee the opportunity to maintain employment solely because the employee has a disability. Thus, an employer, at the very least, is required to make a good-faith exploration and considering accommodations before terminating a disabled employee. Examples of an employer making a good faith accommodation with an employee includes the employer meeting with the employee, requesting information concerning the disability and any limitations on the employee performing the job, discussing alternative working arrangements with the employee, and asking the employee what she specifically needs from the employer.

In this case the school Principal violated the LAD by discriminating against the teacher due to her disability of COVID-19 complications. The school took no consideration whatsoever of her disability and any requests from her for a reasonable accommodation which were ignored. Moreover, the school never engaged in the good-faith interactive process for a reasonable accommodation in her employment due to her disability. Instead, the school quickly terminated her because she could not provide a statement from her doctor that she was able to work full-time. The school failed to engage in discussion with their teacher on her disability, reviewed alternate working options, or engaged in any good faith interactive communication whatsoever. In fact, the school made it harder for her return to work by moving her classroom from the first to second floor even though she had foot drop obtained from her COVID complication. Therefore, the school’s actions constitute direct and obvious disability discrimination against this teacher. This case is in litigation. Stay tuned for the outcome.

To discuss your NJ employment litigation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Employment Litigation Attorney

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