Reasonable Accommodation lawyer

New Jersey Grapples with the Appropriate Use of Sheltered Workshops for Disabled Workers

February 5, 2021 | Smith Eibeler LLC

Statistics show people with disabilities in the United States are twice as likely to be unemployed than those without a disability. The issue has been exacerbated during the coronavirus pandemic, which has caused joblessness to rise and an increase of workplace disability discrimination. But underlying the conversation about getting people with disabilities back to work is a controversial debate about where and what type of work people with disabilities should have access to and be provided reasonable accommodations.

In September 2020, Governor Murphy announced that a total of $1,312,500 of CARES Act funding will be used to reopen 26 sheltered workshop programs throughout New Jersey which have been closed for close to a year due to the Covid-19 pandemic. In making this announcement, supporters credited sheltered workshops with providing “a positive and valuable service for our developmentally disabled community”, and “a safe work environment that cultivates their skills and abilities”. However just 4 months later, in January 2021, some of those same supporters advanced the argument that our state government should be doing more to help individuals with disabilities find inclusive and competitive employment. So what is a sheltered workshop and how is it different from an inclusive and competitive workplace?

A sheltered workshop is an employer that is authorized under New Jersey’s Wage and Hour Law to employ individuals with disabilities at a rate less than the minimum wage. Specifically, Subchapter 9 of the Wage and Hour Law, defines “individual with disability” as someone whose earning capacity is impaired by a physical or mental disability and “sheltered workshop” as a charitable organization focused on rehabilitation, employment or vocational training for individuals whose earning capacity is thus impaired. The law is based on the faulty logic that a person’s disability is the main factor impairing his or her earning potential, and not the law itself which explicitly degrades that potential. These sheltered workshops apply for permits with the Office of Wage and Hour Compliance which authorize them to employ individuals with disabilities at less than minimum wage. Only people with disabilities can be employed under these special permits, ensuring that all non-disabled employees are paid higher wages.

Supreme Court Allows Employee Terminated for Medical Marijuana Law to Proceed with Discrimination Lawsuit

March 12, 2020 | Smith Eibeler LLC

The New Jersey Supreme Court has issued an important decision holding that an employer’s refusal to permit an employee to use medical marijuana can constitute a violation of the New Jersey Law Against Discrimination. The New Jersey Legislature has in recent years recognized the medical benefits of cannabis use to treat symptoms of certain medical conditions. As a result, New Jersey has enacted progressive legislation, including enacting the Compassionate Use Act supporting the use of medicinal marijuana. The New Jersey Supreme Court’s ruling provides greater job protection to New Jersey employees treating serious medical conditions with medicinal marijuana and affirms New Jersey’s position on the use marijuana as a legitimate method of medical treatment.

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, Justin Wild, was employed with the defendant company, Feeney Funeral Home, LLC as a licensed Funeral Director. In 2015, Wild was diagnosed with cancer. His treating Physician prescribed medicinal marijuana as a component of his cancer treatment–primarily to help manage pain. Wild did not disclose this treatment method to his employer, but on days he worked, Wild would only take his prescribed medical marijuana after his shift had ended.

In May of 2016, Wild was involved in a motor vehicle collision during work. Another driver had run a stop sign and struck Wild’s vehicle. As a result of the accident, Wild required medical attention. At the hospital, Wild disclosed to his treating physician that he had a prescription for and had been using medical marijuana to treat his cancer. Upon inspection, the physician concluded the Wild was not under the influence of marijuana at the time of the incident.

Court of Appeals Allows Disabled Employee To Pursue ADA Wrongful Termination Claims

August 22, 2018 | Smith Eibeler LLC

The United States Court of Appeals Third Circuit has reversed a district court’s dismissal of a disability discrimination lawsuit brought by a registered nurse against her former employer. In the lawsuit captioned Aleka Ruggiero v. Mount Nittany Medical Center, the registered nurse claims that she was unlawfully terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) for being terminated after refusing to get required vaccination because of her disability.

The plaintiff, Aleka Ruggiero, was employed as a registered nurse at Mount Nittany Medical Center before being terminated in July of 2015. According to the Complaint, Ms. Ruggiero suffers from severe anxiety and eosinophilic esophagitis, which limited her certain areas of life, including her ability to eat, sleep and engage in social communications. Despite her disabilities, Ms. Ruggiero was able to perform her job duties.

However, Ms. Ruggiero was required by the medical to receive a vaccination for tetanus, diphtheria and pertussis (the “TDAP”) vaccination as a result of her position as a nurse. After not obtaining the vaccination prior to the deadline mandated by the hospital, Ms. Ruggiero provided a medical note from her doctor that medically exempted her from having to receive the vaccination. Mount Nittany Medical Center rejected the doctor’s note and requested further detail concerning Ms. Ruggiero’s medical inability to get the TDAP vaccination. After the treating doctor provided further information from the treating doctor, the medical center again rejected it as insufficient. The medical center also rejected Ms. Ruggiero’s request to wear a surgical mask while at work as a different form of reasonable accommodation. After rejecting both reasonable accommodations requests, Ms. Ruggiero was eventually terminated after she missed the new imposed deadline to obtain the TDAP vaccination.