Disability

Court Questions Decision to Fire Injured Nurse

A hospital fired an injured nurse. Now it faces a disability discrimination complaint.
By: | July 24, 2017 • 4 min read

Is an injured nurse a threat to patient safety? That’s what New Jersey-based Saint Clare’s Health System believed.

The nurse in question came back from workers’ comp and disability leave only to be fired. The hospital admitted that the termination of the nurse was directly related to her disability, stating that she could not perform the essential duties of her job.

Further, the hospital argued, she was a danger to other patients because her injuries could prohibit her from completing tasks.

The court disagreed.

Shouldering the Burden

Registered nurse Maryanne Grande worked for Saint Clare’s for seven years before she suffered her first work-related injury in 2007. While moving a patient, Grande injured her left shoulder, resulting in surgery and three months of physical therapy before returning to work on light duty. Grande returned to regular duty one month later.

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In November 2008, Grande reinjured her left shoulder lifting the legs of an overweight patient. She underwent a second surgery and returned to regular duty two months later.

Finally, in 2010, Grande incurred her most recent injury. A patient was attempting to walk around his bed but lost his balance. Grande caught the patient, but feared she had injured her shoulder again.

An MRI showed she’d injured her cervical spine instead. Another surgery and four months of recuperation under her belt, Grande returned to work for two hours before tapping out. She finally returned two weeks later on light duty.

In August of 2008, Saint Clare’s human resources department led a hospital-wide job system analyses for various nursing positions.

The analysis helped the hospital determine what frequency with which job duties were performed and which tasks were essential to each position. For RNs like Grande, an essential task was frequently lifting 50 pounds from waist to chest.

Though cleared to light duty work in July 2010, Grande was informed by the hospital that she would need to undergo a physical test set up by Saint Clare’s. Grande reported to Kinematic Consultants, Inc. (KCI), for a functional capacity evaluation.

KCI determined that Grande “demonstrated maximum effort” and said she could return to work but would need certain accommodations. The report noted that final determination for return to work deferred to her own physician. Grande was re-examined by her doctor, and was cleared to work with certain restrictions, including occasionally lifting items up to 50 pounds instead of frequently lifting that weight and only transferring patients with assistance.

The next day, Saint Clare’s fired Grande.

Back and Forth in Court

Grande filed a two-count complaint against Saint Clare’s: the first for unlawful discrimination based on a disability and the second for unlawful discrimination based on a perceived disability. Saint Clare’s filed for a summary judgment to which Grande filed a cross motion. Summary judgment was given to Saint Clare’s based on Grande’s inability to show she could perform her job in a way that met hospital standards.

Grande brought her case before an appellate division panel that reversed the summary judgment, stating that the case contained several disputable facts that only a jury could resolve. Saint Clare’s appealed.

The case was brought before the New Jersey Supreme Court. There, Saint Clare’s argued that because Grande was on light duty at the time of her discharge, and both her physician and KCI reported that she needed certain accommodations to complete her duties, Grande could not prove she was capable of performing her RN duties as outlined by the hospital.

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Additionally, Saint Clare’s held that because the KCI report provided evidence that Grande’s continued employment was hazardous to her own safety, her work performance could jeopardize the safety of other employees and patients.

Grande countered that the hospital admitted to firing her due to a perceived disability—a prime example of discrimination, she said.

The New Jersey Association for Justice and the National Employment Lawyers Association of New Jersey filed amicus briefs with the Supreme Court in support of Grande. They argued that Saint Clare’s discriminated against the nurse, improperly assumed that Grande would incur another injury and believed that Saint Clare’s should not have carte blanche to decide the essential functions of a nurse’s job.

The Final Word

Under New Jersey law, employers are prohibited from terminating a disabled employee because of their disability. In this case, the court found that Grande presented a viable discrimination claim.

“When terminating a disabled employee because of an inability to abide by [safety] standards, an employer must prove that its standards relate to the employee’s duties and that no reasonable accommodation exists that will allow the employee to continue in her position,” wrote an associate justice.

The court ruled in favor of Grande, allowing for the nurse to take her trial to court.

Cite: Maryanne Grande, RN, v. Saint Clare’s Health System

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

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Business Interruption Risk

Hidden Risks of Violence

The Las Vegas shooting and other tragedies increase demand for non-physical damage BI coverages. The market is growing, but do new products meet companies’ new needs?
By: | December 14, 2017 • 5 min read

Mass shootings in the United States and the emergence of new forms of terrorism in Europe are boosting demand for insurance against losses caused by business interruption when a policyholder suffers no direct property damage, according to insurers.

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But brokers say coverage for non-physical damage BI (NDBI), needs to evolve to better meet the emerging needs of corporate clients.

For years, manufacturing clients sought a more comprehensive range of NDBI coverages, especially due to the indirect effects of natural catastrophes such as the Thai floods that disrupted global supply chains in 2011.

More recently, however, hospitality and entertainment companies are expressing interest as they strive to adapt to realities such as the mass shootings in tourism hotspots Las Vegas and Orlando and terror attacks in such popular destinations as New York, Paris, Berlin, Barcelona and London.

In addition to loss of life and property, revenue loss is a real risk. Tragedies that cause a high number of fatalities can cause severe financial losses, especially for companies relying on tourism, as visitors shy away from crime scenes.

Precedents already exist. Paris received 1.5 million fewer visitors than expected in 2016, after the French capital was targeted by a series of deadly terror attacks the year before.

More recently, bookings declined in the immediate aftermath of a shooting at the Mandalay Bay Resort and Casino in Las Vegas that took the lives of 58 people on October 1: Bookings at the hotel have since recovered.

Joey Sylvester, national director of operations & planning, Public Sector, Gallagher

“The recent horrific mass shootings in Las Vegas, Nev., and in Sutherland Springs, Texas, raised awareness and concerns about similar events occurring in areas where the public congregates, such as entertainment venues like sporting events, concerts, restaurants, movie theaters, convention centers and more,” said Bob Nusslein, head of Innovative Risk Solutions Americas, Swiss Re CS.

“The second highest NDBI cover to natural catastrophes is terrorism, including active shooter and mass shootings.”

However, products available in the market do not always provide the protection companies would like. Active shooter coverages, for example, focus mostly on third-party liabilities that policyholders may face after a shooting.

Loss-of-attraction policies often define triggering events with a high degree of detail. These events may need to be characterized as a terrorist attack or act of war by authorities. In some cases, access to the venue needs to be officially cut off by police.

It follows that an attack by a 64-year old ex-accountant who shoots hundreds of people for no apparent reason — as was the case in the Mandalay Bay tragedy — isn’t likely to align with a typical policy trigger.

But insurers say they are trying to adapt to the evolving realities of both mass shootings and terrorism to meet the new needs expressed by clients.

“The active shooting coverage is drawing much interest in the U.S. market right now. In Europe, clients are increasingly inquiring about loss of attraction,” said Chris Parker, head of terrorism and political violence, Beazley.

“What we are doing at the moment is to try and cross these two kinds of products, so that a client can get coverage for the loss of attraction resulting from an active shooting event.”

Loss-of-attraction policies cover revenue loss derived from catastrophic events, and underwriters already offer alternatives that provide coverage, even when no property damage is involved.

To establish the reach of such a policy, buyers can define a trigger radius — a physical area defined in the policy. If a catastrophic event takes place within this radius, coverage will be triggered. This practice is sometimes called “cat in a box.”

Some products specify locations that, if hit by a catastrophic event, will result in lost revenue for the insured. For resorts or large entertainment complexes, for example, attacks on nearby airports could cause significant loss of revenue and could be covered by NDBI insurance.

Measuring losses is a challenge, and underwriters may demand steep retention levels. According to Parker, excess coverage may kick in after a 20 percent to 25 percent revenue drop.

Insurers will also want proof that the drop is related to the catastrophic event rather than economic downturn, seasonal variances or other factors.

“Capacity is very large for direct acts of terrorism but lower for indirect terrorism and violent acts because the exposure is far greater,” said Joey Sylvester, national director of operations & planning, Public Sector, Gallagher.

“Commercial businesses, public entities, religious and nonprofit organizations have various needs for this type of coverage, and the appetite is certainly trending upward.”

It is difficult to foresee which events will cause business disruption. As a result, according to Nusslein, companies generally prefer to purchase all-risk NDBI covers rather than named-perils coverage.

“The main reason is that, if they have coverage for four potential NDBI events and a fifth event occurs, the fifth event is not covered,” he said. “Insurers, new to NDBI covers, still prefer named-perils covers over all-risk cover.”

Current geopolitical tensions are also fueling buyers’ demands.

“Many companies want nuclear, biochemical, chemical and radiological exclusions removed from terrorism NDBI covers. While this is more difficult for insurers, it is not impossible,” Nusslein said.

“War risk NDBI cover is becoming more sought after due to political tensions between the U.S. and North Korea.”

“Many companies want nuclear, biochemical, chemical and radiological exclusions removed from terrorism NDBI covers. While this is more difficult for insurers, it is not impossible.” — Bob Nusslein, head of Innovative Risk Solutions Americas, Swiss Re CS

Natural catastrophes still constitute the largest share of perils underlying NDBI products.  Parametric indexes are increasingly employed to provide uncontroversial triggers to policies, said Duncan Ellis, U.S. property practice leader, Marsh.

These indexes range from rainfall levels and wind speed to the measured intensity of earthquakes. Interest in this kind of NDBI coverage expanded after the recent hurricane season.

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“The benefit of these products is that you do not have to go through the settlement process, which clients hate,” Ellis said.

NDBI policies are often bespoke, which is more common for very large insurance buyers.

“Usually, the market offers bespoke coverages for individual industries or clients, with very significant deductibles,” said Tim Cracknell, partner,  JLT Specialty.

NDBI cover can also help transfer regulatory and product recall risks. The life science sector is expressing interest in this kind of solution for cases where a supplier goes bankrupt or is shut down by a regulator, or a medication needs to be recalled due to perceived flaws in the manufacturing process.

Experts say that concerns still to be addressed are NDBI losses caused by cyber attacks and pandemics.

Capacity is an ongoing concern. According to Swiss Re CS, $50 million to $100 million, or even more, can be achieved through foundation capacity provided by a lead insurer, with syndicated capacity to other insurers and reinsurers, depending on the risk. &

Rodrigo Amaral is a freelance writer specializing in Latin American and European risk management and insurance markets. He can be reached at [email protected]