Schorr & Associates’ Employment Case of The Week ending June 2, 2017

Grau v. AHS Hospital Corp., 2017 N.J. Super Unpub. LEXIS 1342  (App. Div., June 2, 2017)

Some of the most emotional difficult cases that come before us involve nursing employees that have been injured on the job and have lost their career jobs because of injuries suffered in the line of duty. It is a fact of life for nursing professionals that it is an extremely physically demanding job, often involving lifting heavy items and sometimes lifting and carrying patients, pushing, pulling, bending, reaching, amid all sorts of dangerous conditions, including slippery floors. Unfortunately, when nursing professionals suffer lifting injuries, it all too often results in the end of their career. While logic and common sense would dictate that there should be some sort of job protection to these most dedicated and important employees, it often falls short. Francis Grau learned that lesson the hard way this week.

Ms. Grau worked for twenty-six years as a nursing assistant in a cardiac unit at Morristown Medical Center. As a nursing assistant, she was responsible for assisting patients with activities of daily living, bathing and helping patients with their hygiene maintenance, making beds, turning and positioning patients as needed, maintaining and stocking linen carts, and moving, maintaining, and returning all equipment used in patient care.  She also needed to be able to push stretchers, chairs, and empty beds and, as part of a team, a patient while in a bed, for distances of hundreds of feet.  In January 2013, Ms. Grau fell at work and injured her shoulder.

Her physician cleared her to return to work on “light duty” with strict restrictions on lifting, pushing and pulling. As a result, Ms. Grau was unable to work as a nursing assistant. The employer accommodated her with a temporary sedentary desk position in infection control. The evidence, according to the opinion, demonstrated that the employer also tried to find a permanent sedentary job for her but was unable to do so. The employer also attempted to retrain Ms. Grau, but she was unable to keep up with retraining because of her limited ability to use a computer.

The employer was only willing to provide light duty for 90 days. In the meantime, it was determined that Ms. Grau was now permanently unable to perform the duties of a nursing assistant. The employer was able to convince the Court that they had done everything possible to accommodate or find a new job for Ms. Grau, but they were unable to find her a position. Unable to find another position, in February 2014 Ms. Grau retired and successfully applied for Social Security Disability.  In March she filed suit alleging disability discrimination. After discovery, the Defendant successfully filed and was granted summary judgment.  The plaintiff appealed.

The Appellate Division affirmed. The unpublished decision contains a fairly comprehensive treatise of the law governing disability discrimination, reasonable accommodation, and the employer’s duty to engage in an interactive process. The Court concluded that Ms. Grau was unable to perform her duties of nursing assistant, with or without accommodations, and therefore did not have protection for that job. With regard to the obligation to find another position as a reasonable position, the Court found that the employer had met its burden to demonstrate that they did not have an open position that Ms. Grau was qualified for. Furthermore, Ms. Grau’s ability to qualify for other positions was complicated due to her inability to competently use a computer.

These cases are very challenging and very dependent upon tenacious discovery into whether there were available non-physical positions; whether those non-physical positions could be made permanent; whether retraining is possible; and whether the job itself could be restructured. One way that employers, especially in the medical field, discriminate against its employees is by creating job description requirements that are completely unrealistic. We routinely see and litigate cases where employees who do not lift at all as part of their normal every day duties have job descriptions that require an employee to be able to lift 100 pounds. The Court should not take these job descriptions at face value and plaintiffs in these cases should focus on the creation of such ridiculously overbroad job descriptions as evidence of the employer’s discriminatory animus.

We believe that these cases will become increasingly frequent and difficult as the health care industry and its employees struggle with the physical demands of health care work.  The Law Against Discrimination provides broad protection to temporarily disabled employees, but unfortunately employees who suffer permanent disabilities often find their cases slip through the cracks in the law.

Appellate Judges: Haas and Currier.