Employer’s Cannot Avoid Liability under New Jersey’s Disability Discrimination Laws by Arbitrarily Dictating What Constitutes An Essential Job Function

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.

Grande sued Saint Clare’s claiming she was wrongfully terminated due to her disabilities or perceived disabilities in violation of New Jersey’s LAD. The trial court granted Saint Clare’s motion for summary judgement dismissing her claims against them. On appeal, the Appellate Division reversed and remanded the case for trial. The New Jersey Supreme Court agreed to hear Saint Clare’s appeal of the Appellate Division decision.

One of Saint Clare’s primary arguments on appeal was that it had the right to end Grande’s employment because she had chronic and excess absences due to her injuries and consequently was not performing her job to their legitimate expectations at the time the decision was made to terminate her employment. The New Jersey Supreme Court in affirming the decision of the Appellate Division below rejected this argument by agreeing with Grande that there were material facts in dispute on the issue of whether her absences from work precluded her from demonstrating that she was performing her job at the time she was terminated. Essentially, the Supreme Court found the issue of whether Grande’s disability precluded her from performing the essential functions of her job should be left to a jury to determine. Furthermore, the Supreme Court also found that it was inappropriate for the trial court to have ruled as a matter of law that Grande’s disabilities prevented her from doing her job as a RN without posing a substantial risk of harm to her or others. This is because Saint Clare’s had failed to meet its affirmative burden of establishing by competent proofs that it reasonably and objectively concluded that Grande’s disabilities presented a materially enhanced risk of substantial harm in the workplace to her or others.

At Mashel Law LLC, we are well experienced in handling disability discrimination claims. If you believe you have been the victim of unlawful discrimination or retaliation in the workplace, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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