Your employee asked you for reasonable accommodation of a disability. You promised to look into it but didn’t quite get around to it. Then your employee got hurt on the job. It’s clear the injury is because of the disability and the requested accommodation would likely have headed off the injury. Since it is a work-related injury, she received workers’ comp benefits. You, therefore, are incredulous when your employee files a disability discrimination lawsuit. Doesn’t the workers’ compensation bar preclude this claim? Besides, how could you have discriminated if you didn’t take any adverse employment action (e.g.. termination, demotion, less favorable transfer) against the employee? Those are good questions. Read on for some answers… As usual, I have a real, live example in mind. The case is Richter v Oakland Board of Education (A-23-19) (083273) June 15, 2021. In a nutshell, here’s what went down: Mary Richter worked as a Middle School Science teacher for the Oakland Board of Education. Ms. Richter was a longtime Type 1 diabetic. When she received her schedule for the first marking period for the 2012-13 school year, she saw that her lunch period would not be until 1:05 p.m. She was concerned that a later lunch would negatively affect her blood sugar levels, she asked the school principal to change her schedule so that she could eat at 11:31 a.m. The principal promised to “look into it”, the parties did exchange further communication, and in the end, no change was made, and she ingested glucose tablets to try to maintain her blood sugar levels. During the second marking period, she did receive a schedule adjustment, but for the third marking period, she encountered a similar scheduling issue.
On March 5, 2013, near the end of the period before her lunch, Ms. Richter had a hypoglycemic event and suffered a seizure in front of her students. She lost consciousness, struck her head on a lab table, and the floor, causing extensive bleeding, and she was taken to the hospital. She had never before lost consciousness at work. She received workers’ comp benefits for her medical bills and disability benefits. In March 2015, she filed a disability discrimination claim under the New Jersey Law Against Discrimination (NJLAD) for failure to accommodate or her diabetic condition. The Board of Education moved for partial summary judgment, arguing that the claim was barred by the exclusive remedy provision of the Workers Compensation Act. The court denied that motion, finding the Board’s failure to accommodate to be an intentional act. (The WCA “exclusive remedy” provision does not apply to employers’ intentional acts.) The Board again moved for summary judgment, arguing that she didn’t state a viable failure-to-accommodate claim, because she did not allege that she suffered an adverse employment action (e.g. termination, demotion, or other unfavorable treatment). The court granted summary judgment on this issue and Ms. Richter appealed. The Appellate Division reversed and the Board appealed to the NJ Supreme Court.
The NJ Supreme Court held that: a) a plaintiff need not allege an adverse employment action to sustain a failure-to-accommodate claim under the NJLAD, and b) “plaintiff’s LAD claim based on defendants’ alleged failure to accommodate her pre-existing diabetic condition is not barred by the WCA, and plaintiff need not filter her claim through the required showings of the “intentional wrong exception.”
OK, what’s behind the court’s ruling? I mean, why doesn’t someone who alleges discrimination have to show that s/he suffered an adverse employment action? How then was the employee harmed? In the court’s words: “The wrongful act for purposes of a failure to-accommodate claim is the employer’s failure to perform its duty, not a further adverse employment action that the employee must suffer…While a lack of demonstrable consequences — whether in the form of an adverse action, of injuries like those sustained by Richter, or of some other type — might affect the damages to which an affected employee might be entitled, an employer’s failure to accommodate is itself an actionable harm.” What about the Workers’ Comp bar though? Citing precedent, the court held that:
[T]he WCA’s exclusive remedy provision does not attach to Richter’s LAD claim. Each statute operates to fulfill different purposes, both protective of workers in the workplace. The statutes can function cumulatively and complementarily; they are not in tension, much less in conflict, as the Court illustrates by reviewing the facts of the present case. The two statutory schemes, harmonized, operate to prevent double recovery. With double recovery averted, there is no possible conflict. Thus, the fullthroated pursuit of remedies available under the LAD for actionable disability discrimination may proceed unencumbered by the WCA exclusivity bar.
In other words, if a jury awards Ms. Richter damages on the LAD claim, the employer could get reimbursed for the workers’ comp benefits she received.
Now, you may be thinking, this is all well and good, but isn’t this ruling only relevant in NJ? Admittedly yes, this is a claim under the New Jersey Law Against Discrimination. The court did, however, point out that most Circuit Courts of Appeals have similarly ruled that an employee need not show s/he suffered an adverse employment action to support a failure-to-accommodate claim under the ADA. (By the way, under the ADA, (and most state counterparts) failure to accommodate a disability is built into the definition of discrimination.)
So what’s the bottom line for employers? Basically, this: Be proactive. Engage in the interactive process with employees that you know have a disability, or who request an accommodation. Make every effort to provide an effective accommodation that does not pose an undue hardship. Also, remember that when an employee makes such a request, there are no magic buzzwords required. Even if an employee merely expresses concern about being able to perform certain job functions due to a medical condition, can be enough to put an employer on notice of the need for accommodation. Follow up on all requests, even if they seem vague.
This seems like a good ending point for now. See you next time!
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