Author: Alfred Tumolo
On June 24th, the New Jersey State Assembly unanimously passed bill A2617, sending it on to Governor Murphy to soon become law. Under A2617, employers must give a hiring preference to their injured workers who cannot return to the same position after they have been discharged from medical treatment. This is not an amendment to New Jersey’s law against discrimination which requires a reasonable accommodation for a disabled worker, but instead it would modify the Worker’s compensation code, adding an employment right to what is typically seen as a ‘benefits only’ statute. Specifically, this would apply to any employer with 50 or more employees, and applies to those workers who were injured while working for them. If after reaching maximum medical improvement, the petitioner cannot return to their previous position, they must be given preferential treatment in the hiring process for a position with the Employer that meets the employee’s medical restrictions. This must be an existing position within the company that is unfilled. It does not require that the employer create a new position specifically for this worker, nor would it require the employer to terminate another employee to accommodate the injured worker.
It is not a rare situation for an employee to be released from medical treatment with chronic restrictions on their ability to perform certain job functions, especially carrying or lifting substantial weight. These employees are still able to work, but are not able to return to the type of work they were doing previously. In larger companies that are more likely to have other less physically strenuous positions, this would allow injured worker’s to have a better chance to remain employed with the same employer. More specifically, it also makes the injured worker more likely to be employed in general, as it is naturally more difficult to find employment at other employers whom with there is no prior relationship when encumbered by permanent physical restrictions. This is a benefit for worker’s in the state of New Jersey, and if it becomes law as expected it will vest a right to employment inherent in the worker’s compensation statute.
A2617 will certainly lead to litigation over time, and the Courts will make decisions that may fill in some of the gaps in the proposed legislation. For example, there are no statements in the bill that identify any specific penalties if an employer was proven to violate this hiring preference. Would the worker have access to lost current and future wages as in an employment law claim? It also does not specifically state for how long must the hiring preference be enforceable against the employer. If a position that was filled when the injured worker was released to work with restriction becomes available soon afterwards, would the injured worker still be required to be given preference if they apply? While it will remain to be seen how effective this bill will be for those who are injured at work, it is a welcomed positive step in the right direction.