Company Must Pay Ex-Worker with Sleep Apnea for Failing to Reinstate Him Despite Medical Clearance

New Jersey Attorney General Gurbir S. Grewal and the Division on Civil Rights state that a New Jersey trucking company must pay an ex-employee with sleep apnea $30,000 to resolve allegations it fired the man despite repeated medical examinations certifying him as fit for duty.

P. Judge & Sons, Inc, a trucking company located in Essex County, must pay former employee “R.B.” $15,000 to cover lost wages and another $15,000 for alleged pain and suffering. R.B.—the ex-employee’s name is being withheld to protect his medical privacy—worked as a yard switcher at the P. Judge & Sons facility in Port Newark. Among other duties, he conducted vehicle inspections, maintained the yard, and emptied containers and trailers from the yard to the loading docks.

“This case should serve as a reminder to employers across New Jersey that our Law Against Discrimination prevents disability discrimination, and we are committed to ensuring those rights are protected,” says Attorney General Grewal in a release. “In the face of repeated certifications of fitness for duty by licensed medical professionals, employers simply do not have authority to impose their own, uninformed biases and terminate a person with a disability.”

In March 2015, R.B. underwent a physical exam required periodically for workers in his job by the US Department of Transportation. The exam resulted in a diagnosis of sleep apnea, and R.B. was placed on medical leave. R.B. then began treatment for his apnea and later underwent a physical examination at Concentra Medical Center—the company’s medical provider—in Newark. As a result of the physical, R.B. was issued a medical examiner’s certificate (MEC) clearing him to return to his job. The MEC was valid for one month, and R.B. was instructed to continue treatment for his apnea after resuming work.

Despite the MEC clearing him to return, R.B. was denied reinstatement. Allegedly, his supervisor told R.B. that he needed an MEC valid for at least three months. However, after R.B. underwent a subsequent physical examination and obtained an MEC valid for three months, he was again denied reinstatement.

After seven months of being out of work—and repeated denials of reinstatement despite two MECs declaring him fit—R.B. filed a formal complaint with the Division on Civil Rights.

During an investigation by the division, one company official at P. Judge & Sons told investigators that R.B. was not permitted to resume work because he was continuing to receive treatment for his sleep apnea, and the company is “under no obligation to employ individuals whose health is non-compliant.”

Another company official argued that R.B. technically was not terminated. Rather, the official said, R.B. never contacted the company again after being denied reinstatement the last time. The same official contended that reinstating R.B. was a potential liability, because an employee afflicted with sleep apnea “can go to work… three months goes by, then he’s off, has to go to the doctor, and we’re getting charged by Concentra for the medical treatment.”

Division Director Sashihara noted that a division investigation found nothing in DOT regulations, or in P. Judge & Sons’ own internal policies, to support the suggestion that the company was barred from reinstating R.B. once he presented either the one-month or three-month MEC.

“We know from our investigation that the company has, in the past, returned employees to work on the basis of a one-month MEC. We know that because company officials who we interviewed told us so,” says Director Sashihara. “Again, the law is the law, and ignorance of it—or disagreement with it—is no excuse. No matter the opinions or intentions behind it, employers and managers with no medical training cannot simply decide to terminate a worker based solely on assumptions, internet articles and the anecdotal experiences related by people they know, which is what we allege took place here.”

In addition to paying R.B. $30,000, P. Judge & Sons is required under the settlement to adopt a variety of workplace policy and training reforms. The company also must submit to state monitoring of its treatment of employees and job applicants with disabilities for the next two years.

Deputy Attorney General Beverley Lapsley and Division on Civil Rights Investigator Justin Hoffer handled the matter on behalf of the state.

from Sleep Review http://www.sleepreviewmag.com/2018/08/company-must-pay-ex-worker-sleep-apnea-failing-reinstate-despite-medical-clearance/

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