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Gelman: Termination and the Lingering Cloud Over Disabled Workers

By Jon Gelman

Wednesday, August 2, 2017 | 1256 | 0 | min read

Injured workers are in constant fear of losing their jobs as a result of absenteeism caused by injuries incurred at work.

Jon Gelman

Jon Gelman

New Jersey Supreme Court Justice Jaynee LaVecchia noted in a recent concurring opinion in a Law Against Discrimination (LAD) case that termination based on absenteeism challenges the remedial social intent of the state Workers’ Compensation Act:

“In my view, issues of reasonable accommodation or absenteeism due to disability have no business being compressed into plaintiff’s pretrial prima facie case. Because plaintiff did not plead a failure to accommodate claim, reasonable accommodation was not at issue as part of plaintiff’s pretrial case. As for absenteeism, Saint Clare’s did not rely on plaintiff’s absences as a reason for terminating her employment. Courts faced with disability discrimination claims should remain focused pretrial on the key question of whether there are triable issues of fact on which a jury could base a finding that an employer has unlawfully discriminated against an employee ...

“To the extent that the majority mentions absenteeism as an issue to be explored at trial, I must point out that absenteeism was not relied upon as a reason for plaintiff’s termination and should not become a new reason to justify the adverse job action, particularly when the employee’s absences were all due to legitimate job injuries for which the employer bears some responsibility under the social compact established under workers’ compensation law. To use plaintiff’s prior injuries as a rationale to terminate her, or to use them as a predictor of future inability to do the job, risks contravention of this state’s public policy. And, as the Appellate Division majority underscored, probability, not mere possibility, is the test for reasonably predicting future safety issues."

The case involved a registered nurse who suffered three injuries and sought to return to full-time employment. A functional capacity evaluation (FCE) obtained by an employer, in conjunction with a workers’ compensation claim, to determine whether an employee could return to full-time duty raised a factual issue in a collateral Law Against Discrimination (LAD) case.

The court found that a genuine issue of material fact existed as to whether the employee presented a risk of injury to herself or patients and remained the case for trial (NJAC 13:13-2.8(a)(2)).

There is a two-phase test in a discrimination action. First, the employee must establish a prima facia case that the employee was fired discriminatorily based on a disability that:

  • The employee is disabled within the meaning of the LAD.
  • The employee was performing his job at a level that met the employer's legitimate expectations.
  • The employee was discharged.
  • The employer sought someone else to perform the same work after the employee left.

A presumption then arises that the employer unlawfully discriminated against the employee.

In the second phase, the burden then shifts to the employer. The employer must then prove by a preponderance of the evidence that the reason proffered was not the true reason for the employment decision, but was merely a pretext for discrimination (NJSA 10:5-4.1)).

The employer must establish that it reasonably arrived at its opinion that the employee is unqualified for the job. Additionally, the employer must produce evidence that its decision was based on an objective standard supported by factual evidence and not on general assumptions about the employee's disability.

The employer's FEC report raised genuine issues of fact as to whether lifting standards noted in the report were actually standards that were applicable to the employee’s job duties and further failed to conclusively establish that the employee was unable to perform her job duties.

The New Jersey Supreme Court, in a unanimous opinion, reversed the trial court summary judgment order and remanded the case for trial on the merits.

Also,"Wrongful discharge has been recognized as a valid cause of action in the State of New Jersey where there is employment at will; however, unless employers act contrary to public policy, they may discharge employees at will for any reason. An employer was permitted to discharge an employee when the employee/physician refused to perform his job by continuing research on a particular formulation of a drug where there was no imminent danger (Pierce v. Ortho Pharmaceutical Corporation, 84 N.J. 58, 417 A.2d 505 (1980)).”

The threat of termination following an occupational injury or exposure remains real. Justice LaVecchia has focussed on a concern that requires more attention in the near future, either judicially or legislatively. Termination of employment should not remain as a lingering cloud over a disabled worker.

Claimants' attorney Jon L. Gelman is the author of "New Jersey Workers’ Compensation Law" and co-author of the national treatise "Modern Workers’ Compensation Law." He is based in Wayne, New Jersey. This blog post is republished with permission.


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