N.J. Admin. Code § 13:13-2.8

Current through Register Vol. 56, No. 8, April 15, 2024

Section 13:13-2.8 - Exception

(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.

N.J. Admin. Code § 13:13-2.8

Amended by R.1995 d.243, effective 5/15/1995.
See: 26 N.J.R. 1942(a), 27 N.J.R. 2005(a).
Amended by R.2000 d.273, effective 7/3/2000.
See: 32 N.J.R. 1155(a), 32 N.J.R. 2445(a).
Substituted references to persons with disabilities for references to handicapped individuals throughout.
Amended by R.2006 d.13, effective 1/3/2006.
See: 37 N.J.R. 2607(a), 38 N.J.R. 335(a).
In (a), deleted "presently" throughout; added "essential functions of the" to introductory paragraph (a) and (a)1; in (a)1, also substituted "essential functions" for "duties."
Amended by R.2012 d.039, effective 2/21/2012.
See: 43 N.J.R. 149(a), 44 N.J.R. 505(a).
In (a)1, deleted a comma following "hire" and inserted "even with reasonable accommodation"; and in (a)2, inserted "where hazard cannot be eliminated or reduced by reasonable accommodation".