Disability Discrimination

New Jersey Employers Can’t Discriminate for Medical Marijuana Use Outside of Work

April 1, 2019 | by Jonathan I. Nirenberg

A recent decision by New Jersey’s Appellate Division recognizes that an employer can violate the New Jersey Law Against Discrimination (“LAD”) if it discriminates against a disabled employee because he uses medically prescribed marijuana to treat a disability outside of the workplace.

Justin Wild worked as a licensed funeral director for Carriage Funeral Holdings, Inc. (“Carriage”). Mr. Wild has cancer. Pursuant to New Jersey’s Compassionate Use of Medical Marijuana Act, Mr. Wild has been prescribed marijuana to help with the associated pain. The Compassionate Use Act decriminalizes the use of marijuana for certain medical reasons including pain relief for individuals with cancer.

In 2016, while working for Carriage, Mr. Wild was in a car accident and had to be taken to the emergency room. He was prescribed pain medication and released from the hospital the same day. At home, Mr. Wild took the pain medication and used medical marijuana.

New Jersey Supreme Court Clarifies How to Prove Disability Discrimination

July 14, 2017 | by Jonathan I. Nirenberg

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Maryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years. During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling. She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation. When she finally returned to work she had to work light duty for several weeks.

New Jersey Discrimination Claim Not Preempted by Federal Labor Law

May 22, 2017 | by Jonathan I. Nirenberg

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”). Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Brian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation. In August 2012, he suffered a knee injury at work. Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.” Bell did not return him to work because it did not have a light duty position for him. An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions. Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

Employee’s Disability Harassment Claim Can Proceed to Trial

December 29, 2016 | by Jonathan I. Nirenberg

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles. Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work. Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012. He returned to work gradually, with medical restrictions for approximately 4 ½ months.

After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition. For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.” Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

New Jersey Court Reinstates Employee’s Disability Discrimination Lawsuit

November 30, 2016 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision that had dismissed Robert Benning’s disability discrimination lawsuit because the trial court improperly ignored evidence which supported his claim.

Mr. Benning is disabled. Specifically, he has cognitive impairment from an episode of cardiac arrest in 1984, which causes him difficulty with his short-term memory and processing new information.

In September 2006, Mr. Benning began working for the Middlesex Regional Education Services Commission (“Middlesex”). Although he initially served as a teacher’s aide, he quickly began to work as custodian. Between 2006 through 2009, he consistently received positive performance ratings.

Employer Can’t Fire Employee for Mistake Caused by its Failure to Accommodate his Disability

September 29, 2016 | by Jonathan I. Nirenberg

A New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator. In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands. He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene. He took almost a week off from work to repair his home.

Treating Physician Can Testify About Employee’s Disability

August 1, 2016 | by Jonathan I. Nirenberg

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher. Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”). She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”). Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS. The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently. Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign. Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher. Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

Employers Need Sufficient Basis to Require Fitness for Duty Exam

February 8, 2016 | by Jonathan I. Nirenberg

A recent ruling by New Jersey’s Appellate Division demonstrates that an employer can commit disability discrimination in violation of the Americans with Disabilities Act (“ADA”) if it requires an employee to attend a psychiatric fitness for duty exam without a sufficient basis to do so.

Paul Williams worked for the Township of Lakewood, New Jersey as a truck driver for the Department of Public Works (“DPW”). In March 2013, Lakewood received an anonymous letter which claimed Mr. Williams’s coworkers “dread” working with him and “everyone knows he has some sort of mental issues” that lead to daily “tirades and outbursts.” The letter asked Lakewood to get Mr. Williams help, and to take steps to ensure the safety of his coworkers.

Lakewood waited more than eight months before it did anything in response to the letter. In December 2013, it ordered Mr. Williams to attend a psychological fitness for duty examination, and warned him he would be subject to discipline if he failed to attend. Mr. Williams refused to attend the exam, claiming it violated his rights under the ADA. True to its warning, Lakewood fired Mr. Williams.

Inaccurate Job Description Foils Termination Based on Failed Fitness for Duty Exam

January 7, 2016 | by Jonathan I. Nirenberg

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

Barbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

The Power of Direct Evidence of Discrimination

November 24, 2015 | by Jonathan I. Nirenberg

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Direct evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.