On April 8, 2010, the Court of Appeals for the Third Circuit held that employers must provide “reasonable accommodations” to disabled employees in establishing work schedules, even when the sole disability-related issue involves an employee’s commute to work. In Colwell v. Rite Aid Corp., No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a part time retail clerk, who was diagnosed with retinal vein occlusion in her left eye, later became blind in that eye. Although she was able to perform the essential functions of her job once she arrived at work, her handicap made it difficult to drive at night. She requested a shift change whereby she would only work during day shifts. There were no taxis available and public transportation ended at 6 p.m.
Rite Aid’s supervisor refused her shift change request advising it would be unfair to the other employees and would be violative of the collective bargaining agreement as shift assignments were based on seniority.
After repeated requests for shift changes were rejected and/or left unaddressed, Colwell resigned her employment and filed suit alleging, among other claims, Rite Aid failed to accommodate her disability, constructive discharge and retaliation. The district court dismissed her complaint.
The Third Circuit affirmed the dismissal of her constructive discharge and retaliation claims but reversed on the failure to accommodate claim holding there was an issue of fact as to whether Rite Aid tried to accommodate her disability.
In rejecting Rite Aid’s argument that Colwell was seeking a non-workplace related accommodation, i.e., commuting to work, the Court held the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. Rite Aid failed to argue that the requested accommodation created an undue hardship on its business.
Employers are reminded there is an affirmative obligation for employers to engage in the interactive process.
If you have any questions relating to an employer’s obligations to engage in the interactive process contact Robert A. Tandy, Esq at (201) 474-7103.
A provision in the recently enacted Patient Protection and Affordable Care Act (more commonly known as the “Health Care Reform Act”) requires employers to provide a “reasonable break time” and a place, other than a bathroom, shielded from view and free from intrusion by co-workers and the public for employees to express breast milk for a nursing child for a period of one year after the child’s birth. This new requirement took effect March 23, 2010.
An employer is not required to compensate the employee for such breaks. Employers with fewer than 50 employees are exempt from this requirement provided the employer can demonstrate allowing such breaks would impose an undue hardship.
Employers are urged to review their nursing break policies to ensure compliance with federal and state laws.
If you have any questions about the new law relating to breaks for nursing mothers contact Robert A. Tandy at (201) 474-7103.
Most New Jersey employers have long operated under the belief that employees have no expectation of privacy in the workplace when using company computers; and, in fact, the employer has the right to review any electronic information contained and/or maintained on work computers. Recently, however, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court created an exception to the “no expectation of privacy” rule holding an employee who exchanges email communication with her attorney through a personal internet based email account using a work computer is privileged attorney–client communication and may not be monitored and/or retrieved.
The Stengart decision stresses the importance of an employer’s need to review and update its policies periodically. The Supreme Court found the company’s policy did not warn employees that personal emails from personal accounts having personal passwords may be stored on a hard drive and reviewed by the company. Although this case involved attorney-client communications, the Court may have opened the door for further litigation in holding: 1) the employee had a subjective expectation of privacy because she used a personal password protected email account (not the Company’s account); 2) the employee had an objectively reasonable expectation of privacy because the Handbook did not address the use of personal email accounts and allowed personal use; and 3) the emails were not illegal or inappropriate such as to potentially cause harm to the company.
If you have any questions relating to your Company’s electronic communication policy, please contact Robert A. Tandy, Esq. at (201) 474-7103.