Disabilities (ADA): New Jersey
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Alison B. Andolena and Michelle Barrett Falconer, Littler
- In addition to the federal equal opportunity laws, New Jersey employers must comply with the New Jersey Law Against Discrimination. See The New Jersey Law Against Discrimination and Disability.
- New Jersey law provides broader protections than federal equal opportunity laws. See Definition of Disability; Additional Protections.
- Employers must provide reasonable workplace accommodations to employees who are pregnant or breastfeeding. See Pregnant Workers.
- Unlike federal equal opportunity laws, New Jersey law does not require the exhaustion of administrative remedies. See Administrative Process.
- New Jersey permits the use of medical cannabis. See New Jersey Medicinal Cannabis Program.
Disability Discrimination in New Jersey
In addition to the federal equal opportunity laws, most New Jersey employers must also comply with the New Jersey Law Against Discrimination. See Employee Management > EEO - Discrimination. Where both federal and state discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.
The New Jersey Law Against Discrimination and Disability
The New Jersey Law Against Discrimination (NJLAD or LAD) prohibits discrimination against any employee or job applicant on the basis of many protected characteristics, including disability and pregnancy (which includes pregnancy, childbirth and medical conditions related to pregnancy and childbirth). For more information on all protected categories, see EEO - Discrimination: New Jersey.
With respect to disability, the LAD prohibits an employer from:
- Discriminating against an individual because of a disability (which includes refusing to hire, terminating and requiring to retire);
- Printing or circulating employment advertisements that directly or indirectly discriminate based on a disability;
- Retaliating against an individual who opposes unlawful practices, files a complaint or assists in a proceeding; and/or
- Aiding or abetting a violation of the LAD.
+N.J. Stat. § 10:5-12. Individual supervisors can be held personally liable for aiding and abetting LAD violations.
Unlike its federal counterpart, the Americans with Disabilities Act (ADA), the LAD applies to all New Jersey employers regardless of the number of individuals employed. Therefore, an employer in New Jersey with fewer than 15 employees may have a state law obligation to accommodate employees with disabilities. +N.J. Stat. § 10:5-5(e). See also Pregnant Workers.
Definition of Disability
The LAD prohibits unlawful discrimination against an individual on the basis of a disability. +N.J. Stat. § 10:5-4.1. Under the LAD, disability means:
- Physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness, including epilepsy and other seizure disorders, and which include, but are not be limited to: any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a service or guide dog, wheelchair or other remedial appliance or device;
- Any mental, psychological or developmental disability, including autism spectrum disorders, resulting from anatomical, psychological, physiological or neurological conditions which prevents the normal exercise of any bodily or mental functions or is demonstrable, medically or psychologically, by accepted clinical or laboratory diagnostic techniques; and
- AIDS or HIV infection.
Significantly, the LAD does not require that the condition substantially limit a major life activity as does the ADA.
New Jersey courts have recognized that the LAD covers a wider range of conditions as a result of the lesser standard of proof that its definition of disability applies.
Duty to Accommodate
As under the ADA, a New Jersey employer is required to provide reasonable accommodations for employees' disabilities that enable them to perform the functions of their job unless the employer can show the requested accommodation would impose an undue hardship (i.e., significant burden or expense) on the operation of its business. +N.J.A.C. 13:13-2.5. Undue hardship is a hard showing to make; however, courts will typically look at:
- The overall size of the employer's business with respect to the number of employees, number and type of facilities and size of budget;
- The type of the employer's operations, including the composition and structure of the employer's workforce;
- The nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions and outside funding; or
- The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
Once an employer knows of an employee's disability, it must initiate an interactive process to reasonably accommodate the disability.
New Jersey courts look to federal law in determining whether an accommodation is reasonable. See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process.
The New Jersey Pregnant Worker's Fairness Act (NJPWFA), which amended the LAD, requires an employer to honor a pregnant employee's request for a reasonable accommodation that is based upon the advice of the employee's doctor. Similar requirements are mandated for breastfeeding employees under amendments to the LAD that took effect January 8, 2018. A pregnant or breastfeeding employee includes a woman who is currently pregnant, is recovering from childbirth, is breastfeeding or expressing milk for breastfeeding, or has a medical condition related to pregnancy, childbirth or breastfeeding.
A reasonable accommodation may include:
- Bathroom breaks;
- Breaks to drink more water or the ability to carry a water bottle;
- Periodic rest periods;
- A modification of job duties or work schedule;
- A temporary transfer so that the employee can avoid strenuous or hazardous work;
- Assistance with manual labor; and
- Reasonable, daily break time and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area, for the employee to express breast milk for her infant child.
An employee does not need to establish that she is disabled by pregnancy, breastfeeding or a related condition in order to receive a workplace accommodation.
An employer may not penalize an employee for using or requesting an accommodation or for taking leave because an accommodation is not feasible.
If a leave of absence is the only feasible accommodation, the employer may designate such leaves as leave under the Family and Medical Leave Act or the New Jersey Family Leave Act, if the employee is otherwise eligible, e.g., if a serious health condition related to pregnancy gives rise to the need for leave.
Like other accommodation requests, an employer is excused from providing an accommodation if the employer can show the requested accommodation would impose an undue hardship. Whether an accommodation would be an undue hardship depends on factors such as:
- The size of the employer's business operations (number of employees);
- The type of business operation;
- The nature and cost of the accommodation (may include a look at the employer's budget); and
- The extent to which the accommodation would require eliminating the essential functions of the employee's job.
An employer must be careful to treat a woman that it knows, or should know, is affected by pregnancy or breastfeeding in a similar way to an employee who is not affected by pregnancy or breastfeeding, but similar in their ability or inability to work. For example, an employer that provides paid leave to employees with other temporary disabilities must make paid leave available to a pregnant employee. However, an employer does not need to provide a more favorable leave of absence to a pregnant employee.
The LAD goes beyond the requirements of the federal ADA because an employer with one or more employees may need to provide an accommodation to make a pregnant employee more comfortable at work, as opposed to limiting an accommodation to an employee that is disabled by pregnancy and needs an accommodation in order to perform the essential functions of her job. The ADA only requires that an employer (with 15 or more employees) treat a pregnant employee the same as other employees with respect to accommodations.
Because New Jersey law is more favorable than federal law, an employer with operations in New Jersey should ensure its leave and reasonable accommodation policies, procedures and forms comply with state law (e.g., a reasonable accommodation policy needs to include employees affected by pregnancy or breastfeeding). HR and supervisors should be trained on reasonable accommodation policies/procedures and should be aware that the types of accommodations that may be reasonable and required for an employee affected by pregnancy or breastfeeding may differ from an accommodation required for a nonpregnant employee.
An employer should also carefully document its accommodation discussions, including any reasons for determining that a particular requested accommodation is infeasible or constitutes an undue hardship.
The LAD also extends its protection to prohibit employment discrimination against any individual on the basis of:
- Genetic information;
- Atypical hereditary cellular or blood trait; or
- Refusal to submit to a genetic test or make available the results of a genetic test to an employer.
According to the Genetic Privacy Act, genetic information is personal information that cannot be collected, retained or disclosed without informed consent from the individual. +N.J. Stat. § 10:5-44; +N.J. Stat. § 10:5-45.
The LAD defines atypical hereditary cellular or blood trait to include:
- Sickle cell trait;
- Hemoglobin C trait;
- Thalassemia trait;
- Tay-Sachs trait; or
- Cystic fibrosis trait.
The LAD provides for the creation of the Division on Civil Rights (DCR), which is responsible for the adoption of rules and regulations as well as the investigation of complaints (also known as charges of discrimination). +N.J. Stat. § 10:5-6; +N.J. Stat. § 10:5-7.
In New Jersey, individuals are not required to first file a complaint with the DCR or the federal Equal Employment Opportunity Commission (EEOC). Rather, the LAD allows individuals to choose where they want to file their complaint (court vs. with the DCR). +N.J. Stat. § 10:5-13.
New Jersey Cannabis Program
Under the Jake Honig Compassionate Use Medical Cannabis Act (Act), which amends the Compassionate Use Medical Marijuana Act, qualified registered users with a qualifying medical condition are permitted to use medical cannabis (previously referred to as marijuana under state law).
A qualifying medical condition means:
- Seizure disorder, including epilepsy;
- Intractable skeletal muscular spasticity;
- Post-traumatic stress disorder;
- Positive status for human immunodeficiency virus;
- Acquired immune deficiency syndrome;
- Amyotrophic lateral sclerosis;
- Multiple sclerosis,
- Muscular dystrophy;
- Inflammatory bowel disease, including Crohn's disease;
- Terminal illness, if the patient has a prognosis of less than 12 months of life;
- Tourette's syndrome;
- Chronic pain;
- Opioid use disorder; or
- Any other medical condition or its treatment that is approved by the Cannabis Regulatory Commission (Commission).
An employer cannot take an adverse employment action against an employee who is a registered qualifying patient solely on the employee's status as a registrant with the Commission. However, the law does not:
- Restrict an employer's ability to prohibit, or take adverse employment action for, the possession or use of intoxicating substances during work hours or on the premises of the workplace outside of work hours; or
- Require an employer to commit any act that would cause the employer to be in violation of federal law, that would result in a loss of licensing-related benefit pursuant to federal law, or that would result in the loss of a federal contract or federal funding.
An adverse employment action is defined as refusing to hire or employ an individual, barring or discharging an individual form employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.
The law also contains provisions regarding drug testing of job applicants. See Preemployment Screening and Testing: New Jersey.
As described above, nothing in the medical cannabis law restricts an employer's right to restrict an employer's ability to prohibit, or take adverse action against an employee for the possession or use of intoxicating substances, whether during work hours or on the work premises outside work hours. However, as the court in Wild v. Carriage Funeral Holdings, Inc., +2019 N.J. Super. LEXIS 37 (N.J. Ct. App. Mar. 27, 2019) noted, just because the state law does not require an employer to accommodate the use of medical cannabis in the workplace, it "does not mean that the LAD may not impose such an obligation, particularly when the declination of an accommodation to such a user relates only to use 'in any workplace.'" The Wild case has been appealed to the New Jersey Supreme Court. Employers should use caution when making employment decisions under the law.
While the use of medical cannabis may be legal under New Jersey law, it is still a Schedule I substance under the Federal Controlled Substances Act and, therefore, illegal under federal law. In other words, regardless of state law, an employer may follow federal law in prohibiting employee drug use. For example:
- While the federal ADA does protect individuals who are former or recovering drug addicts from discrimination by employers, it also specifically permits an employer to take an adverse action (e.g., terminate, discipline) against employees on the basis of current illegal drug use. Therefore, an individual who currently abuses an illegal drug like cannabis is not considered to be an individual with a disability under the ADA.
- The federal Drug-Free Workplace Act of 1988 requires covered employers to publish policies supporting a drug-free workplace and to report and discipline employees who engage in drug-related crimes occurring in the workplace. An employer that fails to comply may risk its eligibility to compete for federal contracts. Thus far, courts have upheld an employer's right to enforce a drug-free workplace even if an employee is using marijuana for medical purposes.
In 2018, a federal district court in New Jersey held that neither the state's Compassionate Use Medical Marijuana Act nor Law Against Discrimination requires an employer to waive a drug test as a condition of employment for users of medical marijuana. See Cotto v. Ardagh Glass Packing, Inc., +2018 U.S. Dist. LEXIS 135194 (D.N.J. Aug. 10, 2018). When a forklift operator was injured on the job, his employer refused to allow him to return to work until he took a drug test, per company policy. The employee alleged that he was discriminated against when the employer refused to accommodate his use of medical marijuana by waiving its drug test. In ruling for the employer, the court determined that the employer was "within its rights to refuse to waive a drug test for federally prohibited narcotics." While state courts in New Jersey are not bound by this federal court's ruling, the opinion noted that state courts have generally upheld employer drug testing policies, so it seems likely that a New Jersey state court would rule the same way.
A New Jersey employer should:
- Exercise caution in dealing with employees who are registered medical cannabis users under state law and ensure that employees are afforded reasonable accommodations where necessary due to the employee's underlying medical condition that gave rise to the need to use medical cannabis;
- Review its drug testing policies and reasonable accommodation policies and train supervisors to understand whether an employee is impaired. Supervisors and HR should also be trained on how to handle disciplining an employee (e.g., providing employee a reasonable opportunity to contest the discipline) who tests positive;
- Address the policy on the use of medical cannabis within the written policy on substance abuse. For example, if an employer will treat medical cannabis just as it treats other illegal drug use, a published policy advising employees and applicants of that fact will help individuals who may be considering the use of medical cannabis to make an educated decision about how that use may affect their employment; and
- Be cautious when implementing workplace policies that deal with the use of legally prescribed medication, generally, including legally prescribed medical cannabis. The ADA does not permit blanket prohibitions against on-the-job use of prescription medications in general. Thus, while drug testing policies can include legally prescribed drugs, an employer cannot have a zero-tolerance policy which permits adverse action (e.g., termination, demotion) against any employee who tests positive for prescription medication. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
A New Jersey employer may institute a policy against employees using or being under the influence of cannabis in the workplace. In addition, an employer may implement drug-free workplace policies and require employees to disclose prescription drugs that may adversely affect judgment, coordination or the ability to perform job duties. If an employee discloses that he or she uses a prescription drug, the employer should first request medical certification regarding the effect of the medication on the employee's ability to safely perform his or her essential job functions. The employer should then engage in the interactive process to determine whether a reasonable accommodation would enable the individual to remain employed.
For employment law purposes, a guide dog is a dog used to assist an individual who is deaf or blind if the dog has been trained by a reputable agency. An individual who is blind person must have satisfactorily completed a specific course of training in the use of the dog. +N.J. Stat. § 10:5-5(s). A service dog is defined to mean a dog individually trained to meet the requirements of a person with a disability. +N.J. Stat. § 10:5-5(dd). It is unlawful for an employer in New Jersey to deny an otherwise qualified individual with a disability the opportunity to be promoted, retained or hired because he or she is accompanied by a service or guide dog, unless it can be clearly shown that the person's disability would prevent him or her from performing the job. +N.J. Stat. § 10:5-29.1.
Emotional Support Animals
New Jersey laws do not address emotional support animals in the workplace or in places of public accommodation.
Service Animal Trainers
Service or guide dog trainers receive similar protections as those provided to an individual with a disability in places of public accommodation. +N.J. Stat. § 10:5-29.3.
For a discussion of the federal ADA service animal requirements, please see Disabilities (ADA): Federal > Service Animals.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.