I hope everyone had a great Memorial Day weekend.

As I have mentioned previously, the last few years have found me increasingly involved in the area of working with counsel representing healthcare professionals who are being forced out of the profession because of their disability. Part of that process includes people being put into the professional recovery programs, often called PHP’s but they can go by other names as well. You can find my blog entry here talking about the potential ADA issues that are involved when a person gets referred into the recovery program, whether it be by an employer or some other way. It is not often that you actually see any of this get into the court system, but we now have such a case. The case of the week is Graziadel v. Capital Health System Inc., a published decision decided by the Appellate Division of the Superior Court of New Jersey on May 23, 2025, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that the trial court had subject matter jurisdiction over the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts (taken directly from the opinion and includes a footnote inserted into this section directly).

Plaintiff alleged that in 2000 she began employment with Capital Health as a nurse manager. In 2006, she “was promoted to a director-level position” and in 2008, she “was promoted to . . . Nursing Divisional Director of Maternal Child Health.” She alleged she was “a strong performer” and “received favorable performance evaluations.”

On the morning of September 24, 2018, while at work, “plaintiff was asked to submit to a breathalyzer test . . . [and h]er blood alcohol level was over the legal limit as a result of her consuming alcohol the night before.” “[P]laintiff was referred to defendant RAMP’s program.1 RAMP purport[ed] to provide recovery and monitoring programs on behalf of” the INI and the SNA. “As a result of RAMP and/or Capital Health’s internal policies, plaintiff was on a leave of absence from approximately September 25, 2018 until March of 2019.” During this period of time, “plaintiff was assured . . . that her job would be there for her when she returned.”

On October 5, 2018, plaintiff and “[t]he New Jersey Board of Nursing [(Board)] and/or [RAMP]” executed a private letter agreement (PLA). In part, the PLA provided that plaintiff agreed: [T]hat any deviation from the terms of this [PLA] without the prior written consent of the Board shall constitute a failure to comply with the terms of this agreement. Upon receipt of any reliable information indicating that you have violated any term of this agreement, your nursing license may be automatically suspended by the Board. You may, upon notice, request a hearing to contest the entry of such an order.

In November 2018, plaintiff was advised “that she could not go back to her management position and that it would be two to three years before she could go back to that job.” Thereafter, plaintiff was advised “that a management position would be ‘too stressful’ and that she needed to focus on recovery.” Plaintiff was told “that she would not be able to return to a management position for five years.”

Plaintiff “successfully underwent all of RAMP’s requirements during her leave of absence, including three Alcoholics Anonymous meetings per week as well as an initial period of ninety meetings in ninety days.” Plaintiff “pleaded with RAMP to allow her to return to her management position, stressing that she had successfully completed all of RAMP’s requirements[,] . . . had been in nurse management for over thirty years[,] . . . did not have any primary patient responsibilities[,] . . . [and] was primarily an administrator.”

In February 2019, RAMP advised Capital Health plaintiff “would not be returning to her management position.” Further, “[w]hen [plaintiff wa]s approved to return to work, RAMP staff w[ould] work with her to find an appropriate non-managerial position.” In April 2019, plaintiff wrote to RAMP and “implored [it] to allow her to be reinstated to her rightful management position.” In response, plaintiff was advised “that she would not be getting a managerial position for five years.” In April 2019, “plaintiff returned to work at Capital Health. She was given the job of Quality and Safety Department, Performance Improvement Analyst.” Her salary was approximately half of what she earned in her prior position.

Further, plaintiff alleged “[t]he refusals to cooperate . . . [were] in direct retaliation for plaintiff’s lawsuit . . . and w[ere] the by-product of continued discrimination and failure to accommodate.” In addition, plaintiff claimed RAMP, “with . . . knowledge of [her] . . . discrimination lawsuit,” discharged her from the program because “she had been allegedly non-compliant” and the “decision to discharge plaintiff from RAMP put[ her] license and career in severe jeopardy.” 2 She reiterated her LAD allegations and included a claim for retaliation.

In November 2019, plaintiff filed her complaint. She claimed she “suffer[ed] from alcoholism” and defendants violated the LAD by discriminating against her on that basis.

Prior to appealing the decision, plaintiff settled her case with Capital Health.

The lower court dismissed the claims for lack of subject matter jurisdiction and plaintiff appealed.

II

Court’s Reasoning That the Trial Court Had Subject Matter Jurisdiction over the Disability Discrimination Claims.

1. The court cited to the preamble to the New Jersey Law Against Discrimination. In that preamble, several points are relevant, including: 1) practices of discrimination against any of the inhabitants in New Jersey because of disability are matters of concern to New Jersey; 2) such discrimination threatens not only the rights and proper privileges of the inhabitants of the State by menaces the institutions and foundations of a free democratic State; 3) legislature opposes discriminatory practices against any person by reason of disability in order to ensure economic prosperity and general welfare of the inhabitants of the State; 4) the harm people with disabilities face when they are the subject of discrimination includes: time loss; physical and emotional stress; illness; homelessness or other irreparable harm resulting from the strain of employment controversy; relocation, search and moving difficulties; anxiety caused by lack of information, uncertainty, and result in planning difficulties; career, education, family and social disruption; and adjustment problems; 5) damages available to all persons protected by the New Jersey Law Against Discrimination must be liberally construed in combination with other protections of New Jersey law.
2. Alcoholism is a handicap under the New Jersey Law Against Discrimination.
3. The New Jersey Law Against Discrimination prohibits the refusing to hire or employ or to bar or to discharge from employment such an individual or to discriminate against such an individual in compensation or in terms, conditions or privileges of employment because of disability.
4. The New Jersey Law Against Discrimination also makes an unlawful employment practice to require employees or prospective employees to consent to a shortened statute of limitations or to waive any of the protection provided by the New Jersey Law Against Discrimination.
5. The New Jersey Law Against Discrimination also forbids retaliation.
6. A person complaining of discrimination under the New Jersey Law Against Discrimination can either file with the State a verified complaint in writing within 180 days after the alleged act or they could proceed directly to a lawsuit in New Jersey Superior Court. That is, a party complaining of discrimination in violation of the New Jersey Law Against Discrimination is not required to raise claims of discrimination or retaliation in any other proceeding.
7. A lawsuit entitles the plaintiff to a: jury trial; all remedies available in common law tort actions, injunctive relief, and remedies provided in any other statute; and treble damages as well as backpay. The statute of limitations for such a lawsuit is two years.
8. An employee who believes she has been the victim of retaliation is not required to raise those retaliation claims as a defense in disciplinary cases. Depriving an employee of that choice and mandating he or she asserts and litigates his or her retaliation claim in the disciplinary proceeding would severely curtail the employee’s rights under the New Jersey Law Against Discrimination as well as to the important benefits of a Superior Court forum (such as more expansive discovery; a trial by jury, and the full range of remedies available in civil action brought under those statutes).
9. New Jersey Law Against Discrimination does not permit any waiver of the protection provided by the New Jersey Law Against Discrimination or to the forced consenting to a shortened statute of limitation.
10. Any hearing before the disciplinary authorities would have been limited to whether the information received was materially false. Such a hearing would not have addressed plaintiff’s New Jersey Law Against Discrimination claims or replicated her right as recorded in the law division proceeding or allowed for the array of remedies available under the New Jersey Law Against Discrimination.
11. Defendants arguments that plaintiff is impermissibly attacking an agency ruling simply does not fly for the following reasons: 1) plaintiff has the right to file her complaint in the law division in the first place; 2) there is nothing about plaintiff’s New Jersey Law Against Discrimination case with respect to her discrimination or retaliation claims that are peculiarly within the agency’s discretion, or requires agency expertise; 3) plaintiff is not seeking anything other than a determination regarding whether defendant discriminate or retaliated against her in violation of the New Jersey Law Against Discrimination. After all, defendant never considered these issues, and therefore there can be no inconsistency; and 4) plaintiff did not raise her New Jersey Law Against Discrimination claims with the defendant.

III

Thoughts/Takeaways

1. I am not licensed in New Jersey.
2. The case stands for the significant proposition that both employers AND PHP’s are subject to disability discrimination laws.
3. The case is a published decision.
4. This is not an ADA case at all. When it comes to the rights of people with disabilities, state laws can vary significantly. They often match the ADA but sometimes they go further. They can also vary in how disability is defined, what constitutes a disability, and the number of employees necessary before that state law will cover an employer. Not all states have disability discrimination laws. For example, Georgia’s law is extremely limited and is limited to state entities. Alabama to my knowledge (I am not licensed in Alabama), has no such law at all.
5. Alcoholism is also a disability under the ADA as well, though the rules can be a bit different. We discussed alcoholism as a disability numerous times in our blog, such as here by way of example.
6. Courts are not likely to take kindly to any document signed by an individual shortening the statutory statute of limitations.
7. The State statutes are going to have various provisions with respect to whether exhaustion of remedies is required, so be sure to check your jurisdiction.
8. The PHP’s programs are often termed “voluntary.” However, as the information in this case makes clear (the court provides that information in a footnote, but I inserted that information (October 15 paragraph), directly into the facts section of this blog entry), that is hardly the case because if a person does not comply, their license is at risk.
9. The ADA is a nondelegable duty, as we discussed here.
10. The ADA always requires an individualized analysis. See this case for example.
11. For a more detailed analysis of the ways that PHP’s might discriminate against persons with disabilities, check out this blog entry.
12. The decision raises an interesting issue by its discussion of when a collateral attack is impermissible, as it creates the question of whether a plaintiff should even try to resolve the disability discrimination claims internally before filing suit because a plaintiff does not want to appear to have waived their rights to proceed in court. One way to deal with that might be making it clear in the advocacy that it is the disability discrimination at issue and not anything else. You might even add explicit language that disability discrimination claims are not being waived by trying to fix the problem internally first. The issue of collateral attacks is something we have seen before, such as here.
13. Despite how the opinion reads, New Jersey Law Against Discrimination no longer uses the term “handicap,” but some laws still do,  such as, for example, the Fair Housing Act.
14. Check your jurisdiction as to how it interprets words associated with causation, as word use and interpretation of those words may vary from one jurisdiction to the other. A must read is this blog entry.
15. This is an employment case. However, the cases I often see involve referrals to PHP’s outside of the employment context. Those situations are a lot more complicated because the statutory provisions and final regulations for Title I, II, and III can be very different from each other. It is certainly my view that as a provider of professional services, PHP’s are subject to Title III of the ADA under 42 U.S.C. §12181(7)(F)-i.e. service establishment.