Employment Law: Disability Discrimination

Donna Russo, Esq.

In July, 2017, the NJ Supreme Court rendered a new opinion, Maryanne Grande v. Saint Clare’s Health System, N.J. (A-67-15 decided July 12, 2017).  The Court revisited the law of disability discrimination and outlined and affirmed its prior decisions.  The Court also made a ruling on the second prong of the disability discrimination criteria.

In this case, Plaintiff was a registered nurse at Defendant’s hospital.  She had been employed since 1985.  In 2006, Plaintiff worked in a hospital unit in which approximately half of the patients were stroke victims who required additional assistance with their daily living needs.  Plaintiff’s regular duties involved maintaining charts, administering medication, and patient care, including assisting patients with daily living activities such as washing, bathing, dressing, walking, repositioning patients in bed, and guarding ambulant patients against falls.   In August, 2008, Defendant hospital performed job system analyses for various nursing positions.  One essential duty of an R.N. was to be able to lift fifty pounds from the waste to chest frequently.

In 2007, Plaintiff injured her left shoulder while repositioning a patient in bed.  She had surgery on her shoulder.  Plaintiff spent three months recovering at home before returning to work on a full-time but “light duty” basis.  Less than a month later, Plaintiff returned to full duty, including patient care.  In 2008, Plaintiff injured her right shoulder while repositioning a patient in bed.  She had an MRI which found no injury.  Plaintiff returned to full duty within two weeks.

In November 2008, Plaintiff re-injured her left shoulder while lifting a 300 pound patient.  She had a second surgery on her left shoulder, and returned to full duty about six months after the incident.  Plaintiff had a final injury in 2010 when she was alone in a room caring for an overweight patient who was moving from the stretcher to a bed.  Plaintiff had an MRI which showed she had injured her cervical spine.  Plaintiff had surgery and spent four months recovering and rehabilitating before returning to work.  On her first day back, she left work after four hours because of residual pain.  She returned two weeks later, to full time, light duty work.  In July, she was cleared to resume her full time work.  However, the Defendant informed Plaintiff that before returning to full time work, she would have to undergo physical testing.  She was sent to Kenematic Consultants, Inc. for a functional capacity evaluation.  The report found that Plaintiff was qualified to return to work on  “altered duty” and recommended that Plaintiff be allowed changes in activities during periods of prolong or repetitive neck movements.  The report also recommended that Plaintiff seek appropriate assistance with heavier physical activities such as patient transfers, guarding ambulatory patients or handling loads greater that fifty pounds.  Defendant sought clarification on the duties Plaintiff could not fulfill and the accommodations she required.  An addendum report was issued which contained a  disclaimer stating that the determination for final return to work abilities is deferred to Plaintiff’s treating physician.

Plaintiff’s treating physician issued a form saying that Plaintiff could return to work with the restrictions per Kenematic Consultants, Inc..  The next day, Defendant fired Plaintiff telling her that she had limitations that would prevent her from doing her job.  Plaintiff went back to her treating physician who cleared Plaintiff to return immediately to full time, full duty work with no limitations.  Defendant refused to rehire the Plaintiff.

Plaintiff filed a lawsuit alleging unlawful discrimination based on her disability and unlawful discrimination based on a perceived disability.  The trial court granted summary judgment to the defendant.  The Appellate Division reversed finding that there were material facts in dispute that must be decided by a jury.  There was a dissent which entitled Defendant to an appeal of right to the NJ Supreme Court.  Ultimately, the NJ Supreme Court affirmed and modified the Appellate Division opinion and remanded the case to the trial court.

The NJ Supreme Court explained that when the allegation is that an employee is fired discriminatorily because of a disability, the employee must prove the following four prongs by the preponderance of the evidence:

(1) the employee is disabled within the meaning of the statute (LAD);
(2) the employee was performing the job at a level that met the employer’s expectations;
(3) the employee was discharged; and
(4) the employer sought someone else to perform the same work.

When the employer raises the defense that the disability prevented the employee from working, the employer has the burden of proof as to this defense.  The employer must produce evidence that the decision to terminate was based on an objective standard supported by the factual evidence and not on general assumptions about the employee’s disability.

The issue of a reasonable accommodation arises where the employee pleads failure to accommodate and where the employer defends on the grounds that the employee was terminated due to inability to perform the job.  The Court ruled that the reasonable accommodation requirement belongs in the prong 2 analysis.  The employee must show evidence that the employee was actually performing the job or was able, with or without a reasonable accommodation to perform the job to the employer’s legitimate expectations.  Basically, the employee must prove that the disability does not hinder the employee’s job performance.  The proof needed is slight or modest.  The employer can rebut the employee’s claim by showing the accommodation is unreasonable

Under the facts of this case, Defendant argued that Plaintiff was not performing her job duties because she was absent over twelve months due to her injuries and was on light duty assignments for two months.  The Defendant also argues that there is a safety issue.  The law permits the termination of an employee if continued employment “would be hazardous to the safety or health of (the employee), other employees, clients or customers.”   N.J.A.C. 13: 13-2.8 (a)(2).  The Defendant argued that the Plaintiff’s issue with lifting patients raised a safety issue.  The Court ruled that it is not enough to assert a safety issue.  The employer must prove with a reasonable degree of certainty that the employee’s handicap materially enhanced the risk of substantial harm in the workplace.  Subjective evaluations or conclusory medical reports are not sufficient.

The Supreme Court concluded that the remand to the trial court because there were factual issues as to whether Plaintiff could not perform her duties and if a reasonable accommodation exists to allow Plaintiff to stay in her position.

The Supreme Court also permitted Plaintiff’s medical malpractice to continue.  The Court stated: “The breach of a physician’s duty to maintain the confidentiality of his patient’s medical records is a deviation from the standard of care, giving rise to a personal injury claim based upon negligence, not defamation or placing plaintiff in a false light.”  The statute of limitations for medical malpractice is two years.

The Supreme Court also reviewed a claim under statutory law which specifically addresses the disclosure of HIV information.  N.J.S.A. 26: 5C-7.  It is a violation to disclose identifying information about a person who has or is suspected of having AIDS or HIV.  The Act provided for a private right of action including an action for actual damages, equitable relief and attorney’s fees.  If the disclosure is wantonly reckless or intentionally malicious, punitive damages may be awarded.