Readers of this blog are aware that earlier this year, the state Assembly introduced legislation to create employment rights under the New Jersey Workers’ Compensation Act for workers who reach maximum medical improvement but cannot perform their job any longer.

John H. Geaney

Many employers have written to say they were shocked that this bill was being introduced. This week, Gov. Phil Murphy signed into law A2617, which provides as follows:

“Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The bill, which applies to employers with more than 50 employees, is notable for what it does not say and what it does not answer. 

• Does it mean that if five applicants apply for a job and one of them is an existing employee who has reached MMI following a work-related injury, the job must go to the employee who is at MMI? Are there any circumstances where the employer can refuse to provide the open job to the existing employee?
• Does it mean that an employer is insulated from a lawsuit if it interviews each of the five applicants and then decides to make an offer to one of the nonemployees based on a good faith perception of better credentials or qualifications? 
• Does it mean that the employer has an affirmative duty to advise any employee with a work-related injury who cannot perform his or her job of all other jobs that are vacant or may be vacant in the near future before making termination decisions? The answer is probably yes.
• Under the Americans With Disabilities Act or New Jersey Law Against Discrimination, the employee must make a request for reasonable accommodation, but this law doesn’t say anything about that. Does this law really obviate the need for an employee to make a request for accommodation and instead put the burden on the employer to initiate a discussion of all open jobs? Unfortunately, this seems to be the case. There will need to be great communication among department heads, human resources and workers’ compensation professionals going forward.
• Since the law is now part of the Workers’ Compensation Act, does the judge of compensation have the power to enforce this provision? Or must an aggrieved employee file a civil suit? Until now, a judge of compensation has had virtually no jurisdiction over employment issues.

The law says nothing about remedies, penalties, counsel fees for violations, or procedures to enforce this provision. The timing of the law could not be more ironic: There are estimated to be 11 million unfilled jobs in the United States and hundreds of thousands of unfilled jobs in New Jersey. It has never been easier to find a job than it is right now. 

This law does acknowledge that employers do not have to create a new position to accommodate an employee, but of course, that is nothing new, either. That statement simply reflects existing law under the NJLAD and the ADA. 

For defense lawyers and workers’ compensation practitioners, this provision is worrisome because the preference language can be stretched in any direction. One must assume that legislators would not pass a soundbite law that added nothing to the existing law.

An amendment to the original draft was added late to state, “Nothing in this section shall be construed to impair or affect any right of an individual with a disability to a reasonable accommodation under the ‘Law Against Discrimination.’” But that ultimately raises questions: What rights does this law provide over and above those existing rights that employees already had under the ADA or NJLAD? What hole in the legal landscape was this provision designed to fill?

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.