Q. I run a bike messenger service in downtown Newark. Recently I discharged one of my messengers who was rendered a paraplegic in a freak accident. We did not participate in the interactive ADA accommodations process, but I think all parties would concede there is no reasonable accommodation that would allow her to ride a bike again. We are aware of liability for failure to provide a reasonable accommodation, but is there a separate cause of action in New Jersey for failing to engage in the interactive process?
A. Yes. Under the New Jersey Law Against Discrimination, a separate cause of action exists if an employer fails to engage in the interactive process. The employer has an obligation, triggered by an employee request for accommodation, to initiate the interactive process with the employee to determine the appropriate accommodation.
An employee who alleges the employer failed to participate in the interactive process must show:
- The employer knew about the employee’s disability.
- The employee requested accommodations or assistance for a disability.
- The employer did not make a good-faith effort to assist the employee in seeking accommodations or assistance.
- The employee could have been reasonably accommodated but for the employer’s lack of good faith.
Even if the handicap precludes performing essential job functions or the potential accommodation imposes undue hardship on the operation of the business, the employer must initiate and participate in the interactive process to be shielded from any liability.
In addition, in your case, had you engaged in the interactive process, you might have discovered that another position was available for which your employee was qualified with an accommodation.