Last week, we posted about the new ADAAA regulations that significantly expand the definition of who is disabled under the Americans with Disabilities Act. Employers in New Jersey may not have paid too much attention to the ADAAA hullabaloo because the New Jersey Law Against Discrimination already provided the broad coverage now found under the ADA.
However, New Jersey employers should take notice that proposed amended regulations do expand when an accommodation must be made for an employee that is disabled. The official public comment period on the amended disability regulations expired on March 19, 2011. As of now, there is no indication when the amended regulations will be published or if there will be any significant changes to the proposed regulations. If passed the amended regulations will impact employers in two ways:
- Changes the definition of undue hardship — the amended regulations continue to provide that one of the factors to be considered when deciding if an accommodation causes an "undue hardship" is the cost to the employer. However, the amended regulations specifically note that when looking at the cost, the employer must also consider whether there are available tax credits and deductions and/or outside funding that could be available to the employer for either employing the disabled person or to help pay for the requested accommodation; and
- Limits the Availability of the Public Hazard Defense — It is currently the law that where an employee with a disability poses a safety risk to the employee or others in the workplace, the employer need not hire the individual and may be justified in terminating the employee. The amended regulations limit the use of this defense significantly by stating that this is only the case "where the hazard cannot be eliminated or reduced by reasonable accommodation."
The first change will definitely mean that there are more times that an employee has to be accommodated. This is not surprising given the historical focus on increasing protections for disabled persons.
What is concerning is the limitation on the public hazard defense. If the regulations are passed as proposed, employers will find themselves in the classic Greek dilemma — between a rock and a hard place. New Jersey law would certainly impose liability on an employer where an employee hurts another person on account of his disability and the employer knew that the employee posed a risk. However, the proposed regulations would make it so that the risk is not a defense if a reasonable accommodation could reduce, but not eliminate, the risk. Employers who decide that even though risk of harm is reduced by a reasonable accommodation, the safety risk to the public is still too great, will find themselves possibly unable to defend a disability discrimination case where they terminate the employee.
We will keep you posted on when and what the final regulations say.