Articles Posted in Reasonable Accomodation

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By Edgar M. Rivera

On March 27, 2019, in Wild v. Carriage Funeral Holdings, Inc., the Superior Court of New Jersey Appellate Division reversed the trial court’s dismissal of plaintiff Justin Wild’s disability claim under the New Jersey Law Against Discrimination (“LAD”) against Carriage Funeral Holdings, Inc. (“Carriage”).  Carriage fired Mr. Wild, an authorized medical-marijuana user under the New Jersey Compassionate Use Medical Marijuana Act (the “Compassionate Use Act”), for using marijuana off duty as part of his cancer treatment.

The Compassionate Use Act, New Jersey’s medical marijuana law, was enacted in 2010.  Mr. Wild began working for Carriage as a licensed funeral director in 2013.  In 2015, he was diagnosed with cancer.  As part of his treatment, Mr. Wild’s physician prescribed marijuana as permitted under the Compassionate Use Act.  In May 2016, a vehicle ran a stop sign and struck Mr. Wild while he was driving for a funeral job.  Injured, Mr. Wild was taken by an ambulance to a hospital emergency room. At the hospital, Mr. Wild advised a treating physician that Mr. Wild had a license to possess medical marijuana.

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In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

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Edgar M. Rivera, Esq.

According to the NYC Commission on Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, approximately one million residents (11.2 percent of the population) of New York City live with a disability.  Fostering environments of inclusivity and accessibility allow people with disabilities to enter and remain in the workforce and meet their most basic and critical needs.  The New York City Human Rights Law (“NYCHRL”)—New York City’s local anti-discrimination statute—is one of the most broad and remedial in the country.  It must be construed “independently from similar or identical provisions of New York State or federal statutes,” such that “similarly worded provisions of federal and state civil rights laws [are] a floor below which the City’s Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise.”  In addition, exemptions to the NYCHRL must be construed “narrowly in order to maximize deterrence of discriminatory conduct.”

As a result, the provisions of the NYCHRL that prohibit disability discrimination are generally broader than the Americans with Disabilities Act (“ADA”).  An individual is considered disabled, within the meaning of the ADA, if he has a physical or mental impairment that substantially limits one or more of the major life activities, has a record of such an impairment, or has been regarded as having such an impairment.  Under the NYCHRL, however, a “disability” means “any physical, medical, mental or psychological impairment, or a history or record of such impairment.”  The NYCHRL definition of disability is “liberalized and expansive.”

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