Most employers recognize the fact that in addition to federal anti-discrimination laws, state and local laws – which often are more expansive – must be taken into account when making disciplinary and termination decisions related to protected individuals.
In a case decided under New York state laws, that state’s highest court reversed summary judgment for an employer who, it said, had failed to engage in an individualized interactive process with a medically impaired employee, even though the employer’s actions may have been sufficient under federal law. Jacobsen v. N.Y.C. Health & Hospitals Corp., N.Y., 2014 BL 83161 March 27, 2014.
William Jacobsen began working with the New York City Health and Hospitals Corporation (HHC) in 1979 as an assistant health facilities planner. In that job, he visited construction sites, met with project directors, inspected buildings, and supervised construction projects. Throughout the years of Jacobsen’s employment with HHC, Jacobsen’s responsibilities continued to include visits to construction sites once or twice a week. In August of 2005, Jacobsen was reassigned to HHC’s Queens Hospital Center (QHC), where he oversaw projects that included extensive renovations and asbestos abatement, and visited construction sites more frequently.
In September 2005, Jacobsen was diagnosed with pneumoconiosis, a lung disease caused by repeated prolonged inhalation of asbestos and other dust particles. In October of that year, Jacobsen took a 3-month medial leave of absence to undergo an open lung biopsy.
In December 2005, Jacobsen was released to return to work with the restriction that he could not return to construction sites or “be further exposed to any type of environmental dust.” In response, HHC simply asked for an “exact date” on which Jacobsen would be “medically cleared to fully perform the essential functions of his duties” which, according to HHC, included 75% of his time on construction projects in the field, and 25% of his time in the office.
In January 2006, Jacobsen’s union requested that, as a reasonable accommodation, Jacobsen be assigned to return to office work. In March 2006, Jacobsen’s doctor informed HHC that Jacobsen was ready to return to work, and could attend meetings in the field. However, the doctor warned that any further exposure to environmental dust must be avoided.
Jacobsen returned to his QHC assignment and, until May 2006, performed regular site visits. However, throughout this period, Jacobsen had difficulty breathing and requested a respirator “fit tested by an industrial hygienist” and “specifically designed to filter the particulates [that were present in] asbestos abatement project.” Instead, HHC provided a standard “dust mask” that could be found in any hardware store. Because the mask’s poor fit interfered with communication, Jacobsen did not wear it on a consistent basis.
In May 2006, Jacobsen again requested a transfer back to the central office, saying that he could perform all of the duties that he had held prior to his transfer to QHC. In reply, HHC refused to remove him from the QHC responsibilities, stating that it was “imperative” that Jacobsen cover that project.
On or about June 5, 2006 Jacobsen filed a disability discrimination complaint. Two days later, HHC placed Jacobsen on 6-month unpaid medical leave, offering to return him to work if his condition improved. Jacobsen’s employment was terminated in March 2007, when he was unable to return to his full responsibilities at the QHC position.
Jacobsen filed a complaint in state court in New York in March 2008, alleging disability discrimination under the New York State Human Rights Law (State HRL) and the New York City Human Rights Law (City HRL).
The state Supreme Court granted HHC’s motion for summary judgment and dismissed the complaint, reasoning that no accommodation was available for Jacobsen because he could not spend time at construction sites and, therefore, could not return to his old duties. The Appellate Division affirmed the Supreme Court’s order, finding that HHC had engaged in a “good faith interactive process,” pointing out that Jacobsen had failed to consistently where the dust mask provided to him and, therefore, could not complain about its inadequacy as an accommodation.
On review, the Court of Appeals of the state of New York – that state’s highest appellate level court – reinstated Jacobsen’s State HRL and City HRL claims for trial.
In its analysis, the Court pointed out the difference between the provisions of the Americans with disabilities Act (ADA) and the state laws. Under both the State HRL and the City HRL, however, an employee’s request for an accommodation is relevant. The Court of Appeals concluded that an employer’s decision to engage in or forego an interactive process is just one factor – albeit a critical one – to be considered in deciding whether a reasonable accommodation is available.
Jacobsen’s request to be transferred to the central office, a position that he had held successfully for decades, created a triable issue of fact, as there was no evidence of HHC’s investigation into whether that transfer was possible, or whether it would create an undue hardship for HHC; second, Jacobsen raised a material factual issue for trial as to whether HHC’s failure to provide a “fit tested” respirator was a failure of the interactive process.
While the Court was careful not to intimate that Jacobsen had a winning case for trial, the lengthy, detailed, and well thought-out opinion makes clear the fact that both the State and City statutes require a somewhat more detailed approach to analysis of the case than the “Old” Americans with Disabilities Act (ADA). However, in light of the fact that the amended ADA – under which more recent cases are being analyzed – focuses less on the statutory definition of “disability” and more on whether an accommodation is possible, employers in both state and federal court cases would be wise to document any interactive efforts at accommodation, and should include in that documentation an employee’s proposed accommodation (whether or not implemented) along with any discussions on and analysis of that proposal.