New York Employment Lawyer Blog

In Nixon-Tinkelman v. New York City Dep't of Health and Mental Hygiene (Aug. 10, 2011), the Second Circuit Court of Appeals held that under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, employers may be, depending on the circumstances, required to make reasonable accommodations for disabled employees' commute to and from work.

In this case, Plaintiff, who has cancer, heart problems, asthma, and is hearing impaired, brought suit under the ADA and the Rehabilitation Act alleging that Defendant failed to reasonably accommodate her disability. Specifically, following her transfer from Queens to Manhattan, Plaintiff complained about the over-60-minute commute via public transportation, and requested that Defendant accommodate her by transferring her back to an office location closer to her home in Queens. Defendant ultimately denied Plaintiff's request, claiming that commuting was outside of the scope of Plaintiff's job.

Although the Southern District of New York found that activities which "fall outside the scope of the job, like commuting to and from the workplace, are not within the province of an employer's obligations under the ADA and the Rehabilitation Act," on appeal, the Second Circuit explained that certain circumstances may require an employer to provide commuting assistance to a disabled employee, and furthermore, that providing such assistance is not "inherently unreasonable."

While the Second Circuit did not declare that an employer has an absolute legal duty to accommodate the commute of a disabled employee, the Court remanded the case to the Southern District for a determination as to whether the requested accommodations were reasonable. The Court stated that because job performance relies on attendance, Defendant must consider measures that allow the disabled employee to get to and from work, including "transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit."

The Court noted that Defendant should also "consider factors such as the number of employees employed by [Defendant], the number and location of its offices, whether other available positions existed for which [Plaintiff] showed that she was qualified, whether she could have been shifted to a more convenient office without unduly burdening [Defendant]'s operations, and the reasonableness of allowing her to work without on-site supervision."

If you are a disabled employee and your employer recently denied your request for a reasonable accommodation, it's crucial that you immediately consult with a New York City employment attorney to learn about, and preserve, all your legal rights.

The Family and Medical Leave Act (FMLA) provides employees with the right to take an unpaid leave for up to twelve weeks following the birth or adoption of a child. However, to be eligible for leave under the FMLA, an employee must have worked for her current employer for a minimum of twelve months. In addition, such leave is only available during the first twelve months following the birth or adoption, not before the baby is born or adopted.

Although the FMLA only applies to employees that have worked for their employer for at least twelve months, there are certain circumstances where a pregnant employee that has worked for less than twelve months may nonetheless be entitled to a leave of absence under the Americans with Disabilities Act (ADA).

The ADA requires that employers make reasonable accommodations to the known physical or mental limitations of otherwise qualified individuals with disabilities. Although pregnancy is typically not a disability within the meaning of the ADA, severe medical complications resulting from that pregnancy can constitute a disability.

Courts have repeatedly distinguished between a normal, uncomplicated pregnancy and a complication or condition arising out of the pregnancy. Some women experience complications as a result of the pregnancy or exacerbation of already existing impairments such as diabetes, back impairment, high blood pressure, and depression. Courts analyzing whether or not such complications may support an ADA claim have been increasingly receptive to the premise that certain physiological pregnancy consequences, if sufficiently severe, may indeed give rise to a protected disability within the meaning of the ADA.

The Equal Employment Opportunity Commission (EEOC) even stated that an "otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship" on the employer.

Lastly, although the ADA typically requires employees to propose an anticipated return date at the time the employee requests the leave, courts have found that pregnancy-related disabilities are unique. Unlike other illnesses of permanent or indefinite duration, disabilities that are diagnosed as exclusively pregnancy-related could reasonably be expected to subside at the conclusion of the pregnancy.

For employers and employees working in New York City, it's important to remember that the New York State Human Rights Law and New York City Human Rights Law also require that employers make reasonable accommodations to otherwise qualified individuals with disabilities.

All employers should consider having a pregnancy discrimination attorney examine their company's maternity leave policies as well as their general disability leave policies to ensure compliance with Federal, New York State, and New York City laws.

As most employers are aware, New York is an "employment-at-will" state. This means that without a contract (or collective bargaining agreement) restricting the reasons for termination, an employer has the right to discharge an employee at any time for any reason, even if that reason seems completely arbitrary and unfair. In fact, an employer may even terminate an employee for no reason at all. On the same note, employees in New York are equally free to quit their jobs at any time without being required to explain or defend their decision.

However, although it's an at-will state, it is nonetheless so important, when disciplining or terminating an employee, for employers in New York to provide that employee with a coherent and consistent explanation for the adverse employment action taken.

Why? Because any inconsistent or conflicting reasons given in the future will only strengthen an employee's claim for discrimination or unlawful retaliation. And believe me when I say that plaintiffs' attorneys jump all over this and will exploit the inconsistencies to the end.

In order to prove discrimination, the employee must first establish a prima-facie case by demonstrating that: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. If the plaintiff makes out a prima-facie case, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action. If the employer makes such a showing, the burden shifts back to the employee to show that the employer's proffered reason is pretextual.

Pretext generally refers to a reason that is false and offered to cover up the true motives or intentions. Pretext can be established by showing that the employer's explanation for termination is not credible. And here's the kicker - New York courts have held that an employee may show pretext by demonstrating inconsistencies, incoherencies, or contradictions in the employer's proffered "legitimate" reasons for its action. It is thus reasonable for a jury to find the proffered reason(s) unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.

As a New York City employment attorney, I always advise employers in New York to decide on a reason for termination, give that reason to the employee at the time of termination, and never contradict or change that reason in the future. By neglecting to give the employee any reason for the termination, employers only leave the door open for that employee to allege discrimination in the future.

As an employment attorney practicing in New York City, I feel obligated to clarify the negative consequences that can occur as a result of lying on a resume. Most cases concerning falsified resumes arise from situations in which an employee has been terminated for reasons other than lying on his or her resume (ex. poor work performance). After being terminated, the employee commences a lawsuit for unlawful discrimination and/or retaliation, and during discovery, the employer discovers for the first time that the employee's resume that was submitted with the original job application had been falsified and is fraudulent.

Because the evidence of the resume fraud was first discovered after the termination had already occurred, this new information is called "after-acquired evidence," and can be used by the employer as a defense to the claims of discrimination and/or retaliation.

In fact, in Quinby v. WestLB AG (2007), the Southern District of New York (federal court covering Manhattan) held that a plaintiff will not be entitled to certain remedies, such as reinstatement and front pay, if the employer can show that it would have terminated the employee anyway based on information that was not acquired until after she was terminated. However, the party asserting the "after-acquired evidence" defense must establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the termination.

Under Federal, New York State and New York City anti-discrimination laws, an employee with a disability is entitled to a reasonable accommodation to allow that employee to perform the essential functions of his or her job. Employers are required to make a reasonable accommodation for the known disability of an employee so long as doing so wouldn't impose an undue burden on the employer's business.

Once the employer is made aware of an employee's disability, the law is clear in that employers have a mandatory obligation to engage in an individual, fact-specific "interactive process" of negotiation to determine a proper accommodation for the employee's specific medical condition. This process should clarify the individual needs of the employee and employer, identify the precise limitations resulting from the employee's disability, and identify possible accommodations that could overcome those limitations.

Just last year, on July 28, 2009, in Phillips v. City of New York, the court reiterated a New York employer's obligation to engage in this interactive process when it held that an employer violated New York State and New York City anti-discrimination laws due to the employer's failure to engage in any interactive process. The court made clear that, under both laws, the first step in providing a reasonable accommodation is engaging in a good-faith interactive process that assesses the needs of the disabled employee and the reasonableness of the accommodation requested. The court further stated that this interactive process must continue until an accommodation reasonable to the employee and the employer is reached (if one is possible).

In light of this obligation, when an employee requests an accommodation for a claimed disability, we recommend that the employer immediately take the following steps to ensure compliance with the law:

1. Look at the particular job involved and establish its purpose and essential functions;
2. Consult with the employee to find out how his or her specific disability limits his or her ability to perform the essential job functions;
3. If the disability is not obvious, ask the employee for additional information and documentation from an appropriate health care provider about the disability and functional limitations;
4. Identify potential accommodations and examine the effectiveness each accommodation would have in enabling the individual to perform the essential job functions; and
5. Consider the employee's preferred accommodation and select an accommodation that is most appropriate for both the employee and the employer.

Lastly, to further limit liability, employers should always document its efforts exploring reasonable accommodations and even develop written procedures for an interactive process that are published in an employee handbook.

Following these suggestions will minimize the likelihood that a court will find that you failed to engage in the interactive process. However, due to the complexities involved in managing employee disability issues, it is smart to discuss your specific situation with a disability discrimination attorney.

If an employee will be absent for more than a certain period of time, many employers require that employee to submit a doctor's note to avoid possible sick-leave abuse. However, it is relatively easy these days to procure a doctor's note from one's personal physician or even a friend. It is important that employers take the time to consider the steps they want to take to verify the doctor's note, and then apply those policies consistently to avoid potential discrimination claims.

Employers should establish a policy that requires employees to provide a doctor's note affirming that the employee was medically unfit for work if they were absent for a certain period of time. If the doctor's note seems intentionally vague, employers should always request additional information. Employers can legally ask for more information to verify whether the employee was actually not able to perform the essential functions of his or her work.

Also, as long as the employer pays the costs, employers always have the option of asking employees to be examined by a doctor of the employer's choosing.

However, before taking any action, employers must read and review all contractual agreements to which the employee is a party, including collective bargaining agreements. If the employee is covered by an agreement or contract, the terms of that agreement could dictate the employer's actions.

Lastly, it is always recommended that employers consult with an FMLA attorney to ensure that they do not violate federal and state laws including the Family Medical Leave Act ("FMLA") and/or the Americans With Disabilities Act ("ADA"). Each law has specific rights and obligations for employers when it comes to managing health-related absences.