|TRENTON – Attorney General Christopher S. Porrino and the Division on Civil Rights announced today that health insurer Horizon NJ Health will pay a former employee $80,000 to resolve allegations it wrongly fired her for not earning a required professional certification on time, despite a two-month disability leave that delayed her preparation for the test.
In addition to paying former employee Nicole Fitchett $64,000 to cover lost wages and another $16,000 for pain and suffering, Horizon has agreed as part of the settlement to revise its policy concerning reasonable accommodation of a disability. The company also will train its supervisors, managers, human resources personnel and others on the requirements of the updated policy, as well as New Jersey’s Law Against Discrimination, upon which the policy is based.
“This case centers on an important and potentially far-reaching issue – the handling of disability in the workplace,” said Attorney General Porrino. “Obviously, New Jersey employers are within their rights to set performance standards and benchmarks for their employees. However, in the case of workers with a disability – or workers who have been granted disability leave – care must be taken to balance any employment requirements with the protections afforded the disabled under our laws.”
“What sometimes gets lost on employers and their HR departments is that the term ‘disability’ is more broadly defined under our State law than under the federal ADA,” said Division Director Craig T. Sashihara. “And of course, the promise of work benefits like sick leave is meaningless if an employee is punished for using it.”
Horizon hired Fitchett in May 2006 to work as an Administrative Assistant. In November 2008, the company promoted her to the position of Pharmacy Benefit Analyst conditional on Fitchett obtaining her Pharmacy Technician Certification (PTC.)
While Horizon encouraged Fitchett to obtain her PTC sooner than later, it did not begin enforcing the requirement until 2010. The reason, a Horizon supervisor told Division investigators, was that the company had been short-staffed and management recognized Fitchett’s workload would make it difficult for her to prepare for the PTC exam.
Fitchett took the exam in December 2010 but did not pass, and was given until the end of March 2011 to retake and pass the test. Subsequently, the March 2011 deadline was relaxed after Fitchett said she’d been too busy with daily work duties to take the exam.
Then, in a May 9, 2011 memorandum, Fitchett was given until October 31, 2011 to obtain her PTC, and was told she’d be discharged if she failed to do so. Two other Horizon employees received a similar memo on the same date, and a fourth Horizon worker received the memo a week later.
Soon afterward, Horizon offered all four employees an opportunity to take a preparatory course for the PTC at Horizon’s expense. Fitchett began taking the on-line course but, in July 2011, her doctor recommended a two-month medical leave of absence.
Horizon approved the request, which it characterized as a short-term disability leave. (The Division is withholding details of Fitchett’s leave to protect her medical privacy.) During that time, Fitchett did not continue preparing for the PTC test because, she told the Division, her doctor advised that she engage in no work-related activity.
Upon her return to the job in October 2011, Fitchett met with her immediate supervisor and a Horizon human resources manager, and was given a week to suggest a plan for obtaining her PTC. Subsequently, Fitchett requested a two-month extension to compensate for prep time lost while out on disability leave. Horizon denied the request and discharged Fitchett soon afterward .
In an internal Horizon “Termination Review” form dated October 26, 2011, the company’s Employee Relations unit approved Fitchett’s firing “for failure to meet the minimum job requirements for the Pharmacy Benefit Analyst position.”
In a Finding of Probable Cause issued against Horizon in December 2015, the Division found that Horizon’s failure to grant Fitchett the two-month extension she sought upon returning from disability leave in October 2011 denied her “the same amount of time that three other employees received to meet the PTC requirement.”
The Finding of Probable Cause also determined Horizon had provided no evidence to show that granting Fitchett an extension through December 31, 2011 would cause an undue hardship on company operations. Even if Horizon could point to such a hardship, the Division said, company officials had a legal obligation to engage in an interactive process with Fitchett to determine if there were less burdensome alternatives available.
Under the settlement agreement announced today, Horizon makes no admission of wrongdoing or liability.
Of the three other Horizon employees who received the same cautionary memo as Fitchett in May 2011, one worker obtained her PTC. Another Horizon employee who received the memo was dismissed in June 2011 for unrelated reasons, and another applied for, and was reassigned to, a job that did not require a PTC.
Division on Civil Rights Investigator J. Manuel Castillo and Deputy Attorney General Beverley Lapsley, assigned to the Division of Law’s Civil Rights section, handled the Horizon matter on behalf of the State.
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