News & Updates

  • THE AMERICANS WITH DISABILITIES ACT (“ADA”)

    REASONABLE ACCOMMODATION OR UNDUE HARDSHIP?

    PART I

    The Americans with Disabilities Act prohibits discrimination against individuals with disabilities. Individuals who have a disability fall into at least one of the following three categories: (1) the employee who has a physical or mental impairment that substantially limits one or more major life activities; (2) the employee who has a history or record of such an impairment; or (3) the employee who is perceived by others as having such an impairment. An employee who is classified as having a disability may request a reasonable accommodation from his/her employer if he/she is unable to perform his/her essential job duties. If the disability is obvious, the employer may be required to offer such an accommodation without a request from the employee. A reasonable accommodation is a modification to an employee’s job duties to help the employee continue to perform his/her essential job duties.

    Examples of a reasonable accommodation can include but are not limited to: making buildings, offices and other facilities used by employees readily accessible, restructuring the employee’s job, allowing employees to modify their work schedules, reassigning employees to vacated positions, and providing modified equipment or devices.

    Courts have defined “reasonable accommodation” to mean that an employer has a duty to accommodate an employee’s disability, but employers do not have a duty to implement every accommodation that a disabled employee seeks or prefers. An accommodation is sufficient if it allows the employee to perform the essential functions of the position. It need not be the best available accommodation or the accommodation the employee desires. Once the employer offers an accommodation that allows the employee to perform essential job functions, the employer has met its legal obligation.

    Although the ADA provides protections for employees with disability such as the ability to request a reasonable accommodation, employers are not required to provide a reasonable accommodation that would cause the employer an undue hardship. An undue hardship is found if the employer would experience financial difficulty, if an employee requests an accommodation that is unduly extensive, substantial, or disruptive, or if the accommodation would fundamentally alter the nature or operation of the business. Whether an employee’s request for an accommodation would cause an undue hardship is evaluated on a case-by-case basis.

    Before denying an employee’s request for an accommodation, employers are encouraged to evaluate the request under the four factors used by the courts to determine if an accommodation would cause an undue hardship: (1) the overall size of the company including the number of employees, number or facilities and the budget; (2) the type of operations and the structure of the workforce; (3) the cost of the accommodation; and (4) the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement. Again, this analysis is fact-specific; therefore, an accommodation that was successful in the past for one employee may not be applicable to other employees with the same condition but in dissimilar circumstances.

    Addressing a request for accommodation begins with a give-and-take between the employer and employee. This is known as the interactive process which all parties are required to engage in. Information on the interactive process under the ADA will be provided in a subsequent post.

    For further information on the ADA or other issues related to managing employees, consult one of the experienced labor and employee attorneys at Trimboli & Prusinowski, LLC. Call 973-285-1095 to set up an appointment with an experienced attorney who can assist your business and you.

  • Employer alert: Policies and Work Rules Under Attack

    On August 2, 2023, the National Labor Relations Board issued its long-anticipated decision in the Stericycle case. Employer policies and work rules will come under greater scrutiny. Any rule or policy that an employee would reasonably perceive as tending to have chilling effect on protected collective activity will be presumptively unlawful unless the employer can prove (a) the rule or policy advances a legitimate and substantial business interest and (b) the employer is unable to advance that interest with a more narrowly tailored rule.

    This new standard applies to non-union employers in the private sector as well as to unionized employers.

    The details of the NLRB’s new approach are troubling. When determining whether an employee would perceive a rule or policy as having a chilling effect, the NLRB will not consider the perspective of “reasonable employee,” but of an employee who is both economically dependent on his or her job and who is considering engaging in protective activity – that is, an employee who has an incentive to detect a chilling effect. Second, if it is reasonable to interpret a rule or policy as having a chilling effect, the rule or policy will be presumptively unlawful even if it could equally well be interpreted as not having a chilling effect. Third, the employer’s intentions are irrelevant.

    If a rule or policy is found to have a chilling effect under this generous standard, the employer must then pass a strict standard to justify it. Not only must the employer demonstrate a legitimate and substantial business interest. It must also show that there is no alternative rule or policy that can advance that interest. This is the same “strict scrutiny” standard that the courts apply in cases involving government action that impinges on fundamental freedoms and, as one may guess, is a difficult standard to meet.

    It is time for private sector employers to carefully review their policy manuals and work rules. Employers with questions regarding this new ruling should contact Trimboli & Prusinowski, L.L.C., at (973) 660-1095.

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