by James M. Leva, JD, Day Pitney LLP
The New Jersey Appellate Division recently ordered a new trial to determine whether an employer failed to engage in the interactive process and accommodate an employee who was terminated after he complained about headache pain.
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Facts
In 2002, “Timothy” began working for Gregory Press, Inc., as a five-color printing machine operator. Gregory Loessel was the company’s owner, and Jeffrey Loessel was Timothy’s direct supervisor. In the summer of 2011, Timothy began experiencing facial numbness and tingling, neck pain, and tingling in his hands. On August 22, he consulted a neurologist, Dr. Monck, who referred him for an MRI of the brain and spine.
Timothy requested and was granted time off work on September 9 to undergo the MRI. Because he was concerned about the results of the MRI, Monck sent Timothy for a spinal tap to determine whether he had one of several diseases, including Lyme disease. Monck testified that one of the possible risks of a spinal tap is headaches.
Timothy told Jeffrey about the spinal tap and requested and was granted time off to undergo the procedure. However, before the procedure occurred, Gregory told him, “You know what, I’ve been talking to a lot of people about your situation and I don’t think there’s anything wrong with you. I think it’s just stress from the flood.” The comment was in reference to Timothy’s house being damaged by Hurricane Irene.
Timothy underwent the spinal tap on Friday, September 16. The procedure left him dizzy and suffering from a headache. He went to work on Monday, September 19, even though he still had a headache. However, his headache worsened, and he told Jeffrey that he had to leave work for the day. He reported the headache to Monck that day.
The next day, Timothy still had a headache, so he didn’t go to work. After he reported his symptoms to Monck, she prescribed a steroid. She also told him not to return to work and faxed a note to Gregory Press in which she stated, among other things, that Timothy was unable to attend work that day and would “return to work based on his recovery later this week.”
At trial, she testified that the steroids Timothy was taking could cause significant side effects, including anxiety, mood changes, and anger. Timothy also testified that the steroids made him “feel very anxious, like shaken, very . . . nervous, and just very uncomfortable.”
After receiving the note from Monck, Jeffrey spoke with Timothy, telling him, “I need you back in by Wednesday” and “Be back by Wednesday.” In light of Jeffrey’s statements, Timothy returned to work on Wednesday and worked for the rest of the week, despite his persistent headache and ongoing steroid treatment.
On Wednesday, Timothy made a mistake that delayed a printing job and wasted paper. He attributed the mistake to his headache and the anxiety caused by the steroids. When Gregory learned about the mistake on Friday, he yelled at Timothy, who responded angrily. Timothy later testified that his response was a result of the steroids and his persistent headache.
Approximately 10 minutes after the exchange with Gregory, Jeffrey approached Timothy and told him he was fired. Timothy was later diagnosed with Lyme disease. Monck testified that Lyme disease is a serious condition, and the combination of Lyme disease and the postoperative effects of a spinal tap and steroid treatment would normally impair a person’s ability to deal with stressful work conditions.
Timothy filed a lawsuit against Gregory Press, Gregory, and Jeffrey asserting claims under New Jersey Law Against Discrimination (NJLAD) for retaliation based on his request for a reasonable accommodation and failure to accommodate/failure to engage in the interactive process.
His case proceeded to trial. After he presented his evidence, the company requested dismissal of his claims. The trial court granted their motion, holding that Timothy failed to prove he had “a physical condition or a mental or psychological condition that prevented the normal exercise of any bodily or mental function.”
The trial court judge found there was no evidence that Timothy’s headaches prevented him from doing his job, and as a result, they didn’t qualify as a disability under the NJLAD. Moreover, the judge opined that even if Timothy had a disability, he failed to present evidence that he was fired because of the disability rather than because of “his attitude.” Finally, the judge found that it wasn’t Gregory Press’ “sole responsibility to initiate the interactive process.” Timothy appealed the dismissal of his case.
Appellate court’s decision
A New Jersey appellate court disagreed with the trial court judge and ordered a new trial. The appellate court reasoned that the NJLAD defines “disability” broadly and must be construed liberally. The court noted that unlike federal law, the NJLAD doesn’t incorporate into its definition of disability a requirement that the alleged condition result in a substantial limitation of a major life activity or require that the condition be serious or permanent.
In the appellate court’s opinion, the trial court judge focused on the wrong condition. Lyme disease—which Monck’s testimony established Timothy suffered from—was the disability at issue, not “headaches.” The headaches were merely a symptom of his disability.
The appellate court also found that Timothy presented sufficient evidence of Gregory Press’ failure to accommodate his disability. At a minimum, the company had received a note from Monck indicating that Timothy was suffering from the side effects of the spinal tap and couldn’t return to work until later that week “based on his recovery.” Nonetheless, Gregory Press ordered Timothy back to work, where he made a mistake that he attributed to the headaches and steroids and for which he was ultimately terminated.
Contrary to the trial court judge’s holding, the appellate court noted that “it is the employer’s duty to initiate an informal interactive process to determine [the] appropriate accommodation [that] is necessary,” and a jury could reasonably find that Gregory Press failed to make a good-faith effort to provide a reasonable accommodation for Timothy.
Bottom line
This case highlights the pitfalls surrounding employee requests for reasonable accommodations, including requests for leave, and the employer’s duty to engage in the interactive process. You should carefully consider whether you can take steps to accommodate a medical condition about which an employee complains.
If more information is required, be diligent about obtaining that information from either the employee or, with appropriate authorization, his medical provider. Although accommodating employees with disabilities can sometimes create hurdles for your company, failing to do so and ending up in costly litigation is far more burdensome.
James M. Leva is a contributor to the New Jersey Employment Law Letter.