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Employers are often faced with a human resources dilemma when an employee claims to suffer from a disability or handicap and requests, or opposes, a shift transfer on the basis of her physical condition. But if the difficulties the employee faces are not related to the actual performance of the job, accomodation is not required. ANALYSIS UNDER THE ADA To determine whether an employer has a legal obligation to accommodate an employee, New Jersey’s state courts often look to federal decisions under the Americans with Disabilities Act. In LaResca v. American Telephone & Telegraph, Civ. 99-5097 (WGB), (D.N.J. May 9, 2001), for example, the employee suffered from epileptic seizures that rendered him unable to drive. He relied on friends, family and public transportation to travel to and from work. AT&T subsequently became aware of his handicap and its managers made a concerted effort to accommodate him by scheduling his shift later in the day. That shift change was acceptable to the employee but subsequently became unavailable when he returned to the company after a lengthy leave of absence. At that time, the only position available in the same office with the same title required work during the night shift. The employee advised AT&T that he could not drive or obtain public transportation after working the night shift. Accordingly, he requested that AT&T accommodate his handicap by transferring him back to the day shift. The employee argued that, in light of his outstanding performance reviews, AT&T was required by law to accommodate his condition by: (1) asking employees who worked the day shift to switch shifts with him; (2) rearranging the shifts to allow him to work during the day shift; (3) allowing him to look for other positions within AT&T or (4) accommodating him as AT&T had done in the past. AT&T contended that it was under no legal obligation to continue to indefinitely accommodate the employee with solutions to his commuting problems. The court agreed because the employee’s ability to work was not affected by whether he was assigned the day or evening shift. Rather, he simply could not get a ride home. In Sagaral v. Mountainside Hospital, Civ. 99-2785 (DRC), (D.N.J. Feb. 26, 2001), the court confirmed that an employee who could perform all of the essential functions of her position on the day shift without accommodation was not disabled because she thought her physical limitations may prevent her from working the same job on the night shift. Without medical evidence to support this claim, the plaintiff’s conclusory statements could not justify her disability discrimination allegation. These two cases are consistent with rulings in other federal jurisdictions. In Bull v. Coyner, 2000 WL 224807 (N.D. Ill. Feb 23, 2000), the employee suffered from an eye disease that made it difficult to travel to and from work in the evenings. Although the employer had full knowledge of the employee’s vision problems, it changed his work schedule to the night shift. The Bull court held that the employer was under no obligation to accommodate employee activities that fall outside the scope of the job, including the employee’s commute. The court further noted that it did not matter if the shift transfer was malicious or insensitive. The court in Salmon v. Dade County School Board, 4 F.Supp.2d 1157 (S.D. Fla. 1998), also confirmed that an employee’s commute is an activity that is outside the scope of her job functions. Therefore, a change in work schedule need not be accommodated. ANALYSIS UNDER THE LAD The issue of shift transfers as reasonable accommodation may also be raised under New Jersey’s Law Against Discrimination. Under the LAD, “an employer must make a reasonable accommodation to the limitations of a handicapped employee or applicant, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” N.J.A.C. 13:13-2.5(b). Reasonable accommodation may include job restructuring, part-time or modified work schedules, job reassignment and other similar actions. N.J.A.C. 13:13-2.5(b)(1)(ii)&(iv). In determining whether an accommodation would impose an undue hardship on an employer, factors to consider include the size of the business, the type of the employer’s operations, the nature and cost of the accommodation and the extent to which accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or nonbusiness necessity requirement. N.J.A.C. 13:13-2.5(b)(3)(i-iv). In Seiden v. Marina Associates, 315 N.J. Super. 451 (Law Div. 1998), the court applied the LAD to the scenario of a casino dealer who suffered from post-traumatic swelling following prolonged periods of standing. His job required him to stand at all times with only short periods of rest. The casino subsequently transferred him from the day shift to the swing shift, which the employee claimed was the most difficult for him to work because his feet and legs were swollen and he suffered excruciating pain by the end of the shift. The employee claimed he needed to work the earlier shifts because his legs were fresher. In response to this request, however, the employer made no attempt to accommodate the employee and, instead, allegedly suggested that he resign if he would not work the swing shift. The court applied the burden-shifting standard under the LAD, which requires the employee to prove that: (1) he was handicapped within the meaning of the law; (2) he was qualified to perform the duties of his position and had been performing his work at a level that met the employer’s expectations; and (3) he, nevertheless, suffered an adverse employment action because of his handicap. In its review of the facts, the court found that all three elements of the prima facie case had been met: the employee was handicapped, otherwise qualified to perform the functions of the job and was separated from his employment because of his disability. The same result was reached in LeBedz v. McGraw-Hill, A-3509-99T5F (App. Div. Jan. 11, 2001), because the plaintiff claimed that his commute negatively impacted on his ability to actually work once he arrived at the work site. Conversely, however, in Wasilewski v. Wyeth-Ayerst Pharmaceuticals, HUD-L-4494-99, Slip Op. at 8 (Law Div. May 25, 2001), the court held that New Jersey’s Family Leave Act, N.J.S.A. 34:11B-4, does not obligate an employer to change an employee’s shift to allow them to care for a sick family member. REASONABLE ACCOMMODATION GOING FORWARD An employer might voluntarily choose to accommodate employees’ shift preference to be helpful, or to maximize its employees’ capabilities, but the ADA does not require that it do so. Rather, the law consistently distinguishes between the need for a shift change due to commuting problems versus the need to accommodate the employee’s limitation so that he may perform an essential function of the job. For the former, no accommodation is needed; for the latter, the employer must engage in an interactive dialogue with the employee in order to assess whether the employee’s particular request for a shift change can be accommodated without causing undue hardship or burden to the employer. The author is counsel at Grotta, Glassman & Hoffman,www.gghlaw.com, of Roseland, N.J. This article was prepared with the assistance of Kenneth Anand, a law clerk and soon to be associate at the firm.

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