A recent New Jersey case serves as a lesson to employers that responsiveness to employee’s workplace safety concerns can make a huge difference in defeating lawsuits.
In that case, an accountant with the Ocean County Board of Health worked in a building next to a construction site. The windows in her building were taped due to construction, but she was still concerned about construction debris. She emailed a county administrator asking whether the debris contained asbestos, which she claimed could aggravate an unspecified medical condition.
Several days later, she emailed the administrator again, copying a county health coordinator, saying there was debris on her windowsill and notebooks and asking if the work was being performed safely.
The administrator assured her that testing indicated there was no asbestos-containing material at the construction site.
The employee nonetheless brought further concerns to her direct supervisor. She was moved temporarily to another building and, before being transferred back a couple weeks later, received a report indicating that the construction site was clear of external debris or other hazards.
Soon after that, however, the employee filed a complaint with the state public employees’ occupational safety and health program.
The employee also left work early the day after she returned to her original location. When she came back, she brought a doctor’s note saying she should avoid exposure to dust and construction materials due to “pulmonary dysfunction.” She then submitted a second note requesting she be excused from work due to allergy symptoms of “unknown etiology.”
Additionally, she requested worker’s comp, claiming her body was itchy and her eyes were swollen. She underwent a physical, although she refused to consent to pulmonary function tests or to allow the examining doctor to speak with her other doctors. The doctor attributed the itchiness to dry skin.
She then requested medical leave, submitting a doctor’s note saying she had shortness of breath from exposure to construction dust. But the county tested her work area and found nothing out of the ordinary and state inspectors found no health violations.
When the employee requested an extended leave, she was told instead that her workspace had been moved away from the windows and she would be provided with a respirator and an air scrubber. She still refused to return to work and was terminated.
The plaintiff brought a failure-to-accommodate claim under the Americans with Disabilities Act, but a federal judge threw out her claim. A federal appeals court affirmed, emphasizing that her employer consistently responded to her workplace safety requests. The case shows that employers who are responsive can defend their actions in court.