One of the leave laws New Jersey employers must follow isn’t really a leave law.
The New Jersey Law Against Discrimination (LAD), which, along with the federal Americans with Disabilities Act (ADA), prohibits employment discrimination against those with disabilities, primarily by requiring employers to make “reasonable accommodations” to keep disabled employees working for them. One of the accommodations could be additional job-protected leave, which is why it was included in NJBIA’s leave law seminar, Leave Laws 3.0.
If you missed out, don’t worry. We’re holding another leave laws seminar March 6.
As Ashley LeBrun of Archer Law explained at the seminar, the reasonable accommodation process is a lot different than complying with typical leave laws, such as the federal Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act (FLA).
For one, there are no time limits. The FMLA and FLA both offer 12 weeks of unpaid, job-protected leave but over different time periods. For a disability, however, the condition could be permanent, making a consecutive or intermittent leave necessary for a duration much longer than 12 weeks. Additionally, the LAD applies to all employees, while the FMLA and FLA each have minimum work requirements before employees become eligible under the law.
The LAD also applies to all employers, regardless of size, while the FMLA only applies to businesses with 50 or more employees and the FLA to those with 30 or more employees.
Similarly, the leave benefit is not defined. If the disability portion of the LAD is triggered, it requires the employer to engage the employee in what’s called the interactive process. In essence, you have to discuss with the employee what he or she would need to continue to do their job. So a reasonable accommodation could include additional leave, even if the employee has exhausted their time under the FLA and FMLA, but it could also involve reassigning the employee to a job they can still do with their disability or providing them special equipment. Even making exceptions to workplace policies could be a reasonable accommodation.
“Leave as a reasonable accommodation is just that,” LeBrun said, explaining that the ADA and LAD do not require leave unless it is a reasonable accommodation. “Leave is not always going to be considered ‘reasonable.’
“If you think that you can give someone that extra week off they are asking for, depending on the undue hardships, which is a really high bar, you have to do that,” LeBrun said. “I have seen a lot of employers mechanically apply policies, but that’s not going to work under the ADA or LAD. This is a very amorphous area of law. It requires a lot of analytical thinking and a lot less mechanical applications of workplace policies.”
Some things to remember during the interactive process:
- Keep employee information to yourself. Various laws require employers to protect an employee’s confidentiality, so any medical information should not be shared with anyone who does not need to know. LeBrun said she has seen companies get sued for even talking about an employee’s disability with co-workers who had no reason to know about it.
- Employers do not have to accommodate employees who cannot adequately perform the essential functions of the job. In other words, if one of your truck drivers loses her eyesight preventing her from being able to drive, you do not have to continue to employ her as a truck driver. A reasonable accommodation may require you to offer her a different position at the company that she could do even with her disability. This is also why it is important to keep job descriptions up to date and ensure they describe the essential functions of the position.
- The responsibility for initiating the process falls on the employee, but requesting leave can take many forms. In essence, as soon as a manager becomes aware of an employee’s disability affecting their job performance or work environment, they should attempt to engage in the interactive process. “There are no magic words,” LeBrun said. “There’s nothing formal about this. Someone could say to you in passing, ‘hey, I’m having a really hard time seeing the computer screen. I think I have a vision issue.’”