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Failure To Accommodate

On Behalf of | Sep 14, 2021 | Employment Law |

Richter v. Oakland Board of Ed.

The NJ Supreme Court recently decided the case of Richter v. Oakland Board of Education reviving an employee’s dismissed claims against her employer. This case hits close to home.

Mary Richter, a Type One Diabetic, like my son, asked for an accommodation at work. As a science teacher, Ms. Richter was assigned to lunch period at 1:05 p.m. She asked the principal to change her schedule so that she could have lunch at 11:35 a.m. to regulate her blood sugars. The request was denied.

By way of explanation for those who don’t know, all Type One Diabetics are insulin dependent. Many Type One Diabetics take two types of insulin, one which works right before meals (the bolus) and another shot (the basal), taken once in a 24 hour cycle, which delivers regular blood sugar control throughout the day. Without regular meals, the basal insulin drives blood sugars down, creating a dangerous condition called hypoglycemia which carries with it the risk of disorientation, fainting or coma. Ms. Richter’s blood sugar fell dangerously low, causing her to faint in the classroom, hitting her head and suffering severe, life changing injuries.

New Jersey law requires an employer to engage in an interactive discussion with its employee to make a reasonable accommodation to address an employee’s disability.  The employee need not use the words “reasonable accommodation” but must ask for a change to allow them to perform the essential functions of their job. The employee must also show that they are able to perform the essential functions of their job if the employer grants that accommodation. The focus of the discussion is on (a) the nature of the disability; (b) what type of accommodation is needed; and (c) confirmation that the employee can perform the essential functions of their job with that accommodation. The employer may respond that the requested accommodation would cause an undue hardship but should consider alternative solutions.

Often, employers refuse to change their policies for one employee for fear that they will have to change their policy for any employee who asks for a change. When presented with medical evidence of the need for an accommodation, employers must engage in the interactive discussion. This means a back and forth analysis of what is being requested and how the employer can make this work. While the employer may ultimately conclude, as the Oakland School District did, that the requested accommodation was not reasonable or possible without creating an undue hardship, they must engage in this discussion nonetheless.

In this case, the NJ Supreme Court recognized that many employees who are denied the requested accommodation may continue to do their job without the accommodation despite having shown a medical need. The court clarified that this employee has a claim for denial of the accommodation even though they may not have suffered a negative employment action, an element generally required to prove damages in an employment case. Ms. Richter was not fired, demoted or otherwise punished for requesting the accommodation. The school principal refused the accommodation and that in itself was  the negative employment action. Clearly, negative since Ms. Richter suffered hypoglycemia as she feared, causing her to faint and suffered long term injuries.

The Bottomline: Whether you are an employee or an employer, you must engage in the back and forth, the interactive discussion. Document the communications and the reasons for which the requested accommodation was denied.