Under the federal American with Disabilities Act (“ADA”), and the New Jersey Law Against Discrimination (“LAD”), a disabled employee is entitled to be reasonably accommodated by their employer so long as to do so does not create an undue hardship for the employer or coworkers. However, for an employee to be entitled to a reasonable accommodation for a disability, the ADA and LAD requires that the disabled employee can perform the essential functions of their job with or without an accommodation. Put differently, an employer is not required to accommodate an employee who cannot perform his or her essential job functions even with an accommodation. Hennessey v. Winslow Township, 368 N.J. Super. 443, 452 (App. Div. 2004), aff’d, 183 N.J. 593 (2005).
What constitutes an “essential function” requires a very fact specific determination. To do so, the U.S. Equal Employment Commission suggests the following factors be considered: (1) the employer’s job descriptions; (2) whether the position exists to perform that function specifically; (3) the experience of employees who actually hold that position; (4) the time spent performing the function; (5) the consequences of not performing the function; (6) whether other employees are available to perform the function, and; (7) the degree of expertise or skill required to perform the function. However,when looking at the job description factor, the New Jersey Supreme Court in Grande v. Saint Clare’s Health Sys., Nos. A-67, 076606, 2017 N.J. LEXIS 746, at *1 (decided July 12, 2017) recently reaffirmed that an employer cannot arbitrarily define which requirements are “essential” job functions.
Maryanne Grande (“Grande”) was a Registered Nurse who suffered repeated injuries while working at Saint Clare’s causing damage to her shoulders and neck. Following her last medical leave, Grande was cleared by her doctor to return to full-duty. However, before permitting her to do so, Saint Clare’s required Grande to undergo and pass a functional capacity evaluation (an FCE). The FCE concluded that Grande was fit to perform medium category work (occasional lift and work up to 50 lbs.) with certain job alterations to avoid prolonged or repetitive neck movements, and required assistance when performing patient transfers or guarding patients or handling loads greater than 50 pounds. Thereafter, Saint Clare’s informed Grande that they were terminating her employment because they felt she had limitations which prevented her from safely doing her job.