New Jersey Administrative Code
Title 13 - LAW AND PUBLIC SAFETY
Chapter 13 - REGULATIONS PERTAINING TO DISCRIMINATION ON THE BASIS OF DISABILITY
Subchapter 2 - EMPLOYMENT
Section 13:13-2.8 - Exception
Universal Citation: NJ Admin Code 13:13-2.8
Current through Register Vol. 56, No. 18, September 16, 2024
(a) It shall be lawful to take any action otherwise prohibited under this section where it can reasonably be determined that an applicant or employee, as a result of the individual's disability, cannot perform the essential functions of the job even with reasonable accommodation.
1. Refusal to refer, admit to
membership, hire or transfer a person with a disability may be lawful where the
nature or extent of the individual's disability reasonably precludes the performance
the essential functions of the particular employment even with reasonable
accommodation. Such a decision, however, must be based upon an objective standard
supported by factual evidence rather than on the basis of general assumptions that a
particular disability would interfere with the individual's ability to perform the
essential functions of the job.
2.
Refusal to select a person with a disability may be lawful where it can be
demonstrated that the employment of that individual in a particular position would
be hazardous to the safety or health of such individual, other employees, clients or
customers where hazard cannot be eliminated or reduced by reasonable accommodation.
Such a decision must be based upon an objective standard supported by factual or
scientifically validated evidence, rather than on the basis of general assumptions
that a particular disability would create a hazard to the safety or health of such
individual, other employees, clients or customers. A "hazard" to the person with a
disability is a materially enhanced risk of serious harm.
3. The burden of proof is upon the employer,
employment agency or labor organization to demonstrate in each case that the
exception relied upon is based upon an objective standard supported by factual
evidence, but no exception shall be based on:
i. A
refusal to select a person with a disability because of the preferences of
co-workers, clients, customers or the employer.
ii. A refusal to select a person with a disability
because of the increased cost of insurance whether actual or anticipated, under a
group or employee insurance plan provided in accordance with the law or as a fringe
benefit.
iii. A refusal to select a
person with a disability because of an assumption not supported by factual
documented proof that such individual will incur a high rate of absenteeism in the
future.
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