DUTY TO ACCOMMODATE INCLUDES MAKING PLANS FOR EVACUATING         DISABLED EMPLOYEES IN THE EVENT OF AN EMERGENCY

M.M. began employment with the State in August 2002. In May 2010, she fractured her foot, an injury which occurred when she was not on the job.  M.M.’s injury resulted in Reflexive Sympathetic Dystrophy (RSD), also known as Complex Regional Pain Syndrome (CRPS).  She was out of work for sixteen months due to her disability.

Once M.M. was cleared to return to work, she required reasonable accommodation because she still had pain and her employer had a duty to accommodate her.  She needed to wear a boot on her foot and required durable medical equipment, specifically a knee walker, to ambulate.  Her former job required field work, which her employer felt she could no longer do.  As an accommodation, M.M.’s employer transferred her to a lower paid office job.

M.M. requested various accommodations to allow her to perform the essential functions of her new position.  She asked to move her desk closer to the filing cabinet she needed to access because it was difficult for her to walk, and she asked to adjust her work hours so she could maximize her chances of obtaining one of the few handicap parking spaces.  Since her injury, M.M. was unable to put weight on her left foot.  She used crutches or a knee walker to get around.

One day while M.M. was at work, a fire alarm sounded. She had her knee walker with her but not her crutches.  She asked a supervisor if she could use the elevator to evacuate the building, but her request was denied.  Given no other option, M.M. began walking down the steps to evacuate the building.

M.M. struggled down the steps with increasing pain.  At some point during the evacuation her supervisor, who was behind her and aware of her struggle, went around her to exit the building, leaving her behind.  By the time M.M. got outside, she was in excruciating pain. At the conclusion of the fire drill, M.M. re-entered the building and, using the elevator, returned to her desk.  After approximately 30 minutes, during which M.M. was in intense pain, she  left the building and went home.

As a result of her employer’s failure to have in place and/or implement an evacuation procedure that properly accommodated employees with mobility disabilities, M.M. suffered a permanent exacerbation of her pre-existing disability and is no longer able to work.

M.M. filed a complaint against her employer under the New Jersey Law Against Discrimination, alleging that her rights as a disabled employee were violated due to her employer’s failure in their duty to accommodate her in the event of an emergency evacuation.

Interest in emergency evacuation planning has increased dramatically since 9/11.  Under the Americans with Disabilities Act (ADA), which is a federal law, employers are not required to have emergency evacuation plans.  However, if they opt to have such a plan, it must include people with disabilities.  In Shirey ex rel. Kyger v. City of Alexandria Sch. Bd., 229 F.3d 1143 (4th Cir. 2000), the court held that failure to develop an emergency plan for the safe evacuation of people with disabilities violates the ADA.  In Ruffin v. Winnebago Cnty Jail, 2010 WL 3359478 (S.D. Ill. 2010), the court held there was sufficient evidence for a jury to find that IDOC failed to provide reasonable accommodations with regard to emergency exits for disabled inmates.

The Federal Emergency Management Agency (FEMA) has emergency procedures for employees with disabilities in office settings.  Recognizing that people with disabilities are increasingly moving into the mainstream of society, FEMA found “[i]t is every employer’s responsibility to provide a safe place for all employees to work”, including providing safe egress in the event of an emergency.  The first step is to identify employees who will need special assistance in the event of a fire or other emergency requiring evacuation.  Once identified, individuals should be consulted about their specific limitations and how best to provide assistance.

M.M.’s case is the first known case under the New Jersey Law Against Discrimination alleging failure to accommodate a disabled person during an emergency evacuation.  In the case of Borngesser v. Jersey Shore Medical Center, 340 N.J. Super. 369 (App. Div. 2001), plaintiff, who was deaf, alleged the medical center failed to provide him and his wife, who was also deaf, with reasonable accommodation during his wife’s hospitalizations.  The Appellate Division noted that discrimination is prohibited even when it is unintentional.  The court found that whether the plaintiffs were afforded effective communication must be determined objectively from the perspective of the plaintiff.  Thus, whether or not the hospital thought plaintiff and his wife understood the various medical discussions and procedures is not enough.  The jury had to objectively determine whether such understanding did occur through the means of communication employed.

By analogy, if M.M.’s employer did not provide her with an evacuation procedure that allowed her to safely exit the building during the fire drill, it does not matter that her employer believed it had an effective procedure in place.  Indeed, it turns out M.M.’s employer had a written evacuation procedure that addressed the evacuation of disabled employees, but never told her about the procedure.  Moreover, it had evacuation chairs to assist disabled people out of the building, but M.M. was not aware the devices existed until it was too late.

M.M.’s case against her employer is still pending.