If you have notified your employer of your disability and are then terminated, your employer may be obligated to engage in an interactive dialogue to determine if they can accommodate you even after you are terminated. Put plainly, employers can be held liable for failing to accommodate an employee even if the employer learns of the employee’s accommodation request after the employee is terminated.

Generally, the LAD prohibits employers from subjecting employees, either perceived to be or who are in fact injured, sick, or disabled, to adverse employment actions, because the employee appears less useful than the employer would like them to be. More specifically, LAD requires employers to “make a reasonable accommodation to the limitations of an employee . . . who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” Clarke v. Atl. City Bd. of Educ., No. A-5344-07T4, 2010 N.J. Super. Unpub. LEXIS 1801, at *11 (App. Div. July 28, 2010).

To establish a prima facie case for failure to accommodate under the LAD, the plaintiff is required to demonstrate that:

  1. [s]he is a disabled person within the meaning of the statute;
  2. [s]he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer;
  3. [s]he has suffered an adverse employment decision as a result of discrimination.

Stith v. New Jersey Turnpike Authority, 2017 U.S. Dist. LEXIS 41931, 2017 WL 1095035, at *3 (D.N.J. March 21, 2017) (emphasis added).

Next, the plaintiff must show “that an employer failed to participate in the interactive process” by proving:

  1. the employer knew of plaintiffs disability;
  2. the plaintiff requested accommodations or assistance for his or her disability;
  3. the employer did not make a good faith effort to assist the employee in seeking accommodations;
  4. and the employee could have been accommodated but for the employer’s lack of good faith. Id. (emphasis added)

However, an employer may be liable for failing to reasonably accommodate a disabled employee even when an employee does not request an accommodation until after the employee is terminated. In other words, employers can be held to have failed to accommodate a disabled employee even if the employer learns of the employee’s accommodation request after the termination. Id. (emphasis added)

To illustrate, in Ologundudu v. Manorcare Health Servs., Inc, defendant-employer, Manor Care Health Services, Inc. terminated plaintiff-employee, Folashade Olugundudu, who worked for defendant as a licensed nurse practitioner (“LPN”). 2017 WL 6450705, at *6 (D.N.J. Dec. 18, 2017). Plaintiff was initially suspended by defendant while working a nightshift, after her supervisor found her apparently resting in the patient lounge during her break. Id. Plaintiff’s supervisor informed her she would be suspended as it was against company policy for nurses to sleep or rest in the patient lounge. Id. Plaintiff clarified to her supervisor she was not asleep or resting, rather she was fighting fatigue and nausea because she was pregnant. Id. Nonetheless, twelve days into plaintiff’s suspension, defendant served plaintiff with an official notice of termination. Id.

Plaintiff filed suit against the Defendant in District Court, alleging she was terminated because of her pregnancy status, constituting disability discrimination in violation of the LAD. Id. at 15. Defendant moved for summary judgment against plaintiff, arguing the decision to suspend plaintiff was made before plaintiff informed defendant of her pregnancy status. Id. Further, the defense claimed plaintiff cannot prove defendant failed to accommodate her pregnancy nor can she prove she was terminated because of her pregnancy because plaintiff never requested reasonable accommodations prior to being terminated. However, the court did not agree. Id. at 16.

The court denied the defendant’s motion for summary judgment in favor of the plaintiff for three reasons. Id. First, the plaintiff was suspended from employment at the same time she expressed her need for rest breaks caused by her pregnancy. Id. Second, an employee does not need to use specific language to request accommodations. Id. Third, the case law on failure to accommodate requires the employer in certain situations to engage in the interactive process even after the employee is terminated. Id. (emphasis added). In sum, the court determined the defendant failed to engage in the interactive process in good faith as they failed to prove how it would have been a hardship to accommodate a pregnant employee. Id. Thus, the court concluded the defendant may be held liable for its post-termination failure to accommodate because the defendant did not engage in any interactive dialogue whatsoever with plaintiff to determine if they could accommodate the plaintiff. Id.

At Mashel Law LLC, we are well experienced in handling disability discrimination claims. If you believe you have been the victim of unlawful disability discrimination and your employer failed to accommodate you, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.


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