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How Not to Deal With an Employee's Disability

disa.pngIn the recent case of Cook v. Gregory Press Inc., an employee claimed that he was wrongfully terminated due to his disability in violation of the New Jersey Law Against Discrimination (LAD) and that his employer failed to provide a reasonable accommodation and engage in the "interactive process." It's a case that shows how reckless an employer can be in dealing with an employee with a disability.

In the summer of 2011, Matthew Cook began experiencing facial numbness and tingling, neck pain, and tingling in his hands. The next month, he consulted a neurologist, and was told he might have Multiple Sclerosis or Lyme disease. He was then told to get an MRI of the brain and spine.

Before the MRI, Matthew's home was damaged due to Hurricane Irene. He was out of work for almost a week because of that. Later, he requested and was given time off from work for the MRI. His doctor then referred him for a spinal tap to see if he had MS, Lyme disease, or a viral or post-viral syndrome. When he asked for time off for the spinal tap, Cook was told by the company's owner that he didn't think anything was wrong with him besides stress from the damage done to his home.

The spinal tap left Matthew dizzy and with a headache. He had to stay in bed all weekend, but on Monday he went to work. As the day went by, the headache grew worse and he had to leave early. Two days later, he told his supervisor that his doctor said he should stay home and get bed rest. He explained that he was being put on steroids, that the headaches could last a week, that he needed bed rest and that he wanted to stay home and get well. The supervisor said he needed Cook back the next day. Matthew understood this to mean he had no choice but to go to work.

But he wasn't ready to return then and at one point, the owner approached him, angry and yelling about a mistake he made. After a heated argument, where Cook asked for the owner to stop yelling at him, he went outside and called his wife. About 10 minutes later, he returned and the supervisor fired him. Matthew was ultimately diagnosed with central nervous system Lyme disease and referred to an infectious disease specialist for treatment.

Cook sued, claiming that his employer violated the LAD. Gregory Press asked a judge to throw out the case and he did, writing that assuming that Matthew had a disability, there was no evidence he was fired because of it, rather than "his attitude" when he was confronted by the owner. Cook appealed and the higher court overruled the judge.

The Appeals Court said that Cook suffered from a disability because his doctor's testimony established that he had physical symptoms of - and actually had - Lyme disease. It also ruled that it is the employer's duty to initiate an "informal interactive process" to decide what appropriate accommodation is necessary when an employee is disabled.

Under the LAD, an employer must reasonably accommodate an employee's disability, 'unless the employer can demonstrate that the accommodation would impose and undue hardship on the operation of its business.'"

The Court was not happy that Gregory Press responded to Cook's illness by expressing doubts that there was anything wrong with him. To make things worse, after he got the doctor's note and being told he was on steroids, that the headaches could last a week and asking for the rest of the week off, the supervisor instead ordered Matthew back to work without any investigation or requesting additional information. The Appeals Court sent the case back to the lower court to let the discrimination claims proceed. Omar Bareentto is a 2016 Rutgers School of Law graduate and a former contributor to the Rutgers Business Law Review. He collaborated with me on this blog.


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