On September 24, 2021, New Jersey Governor Phil Murphy signed into law Bill A-2617/S-2998, which is an amendment to the NJ Workers’ Compensation Act that will require employers to provide a “hiring preference” to any employee who has reached maximum medical improvement (MMI) following a work-related injury. In essence, this Amendment grants employees who are unable to perform their jobs due to work-related injuries certain accommodation protections that are akin to those provided by the New Jersey Law Against Discrimination (NJ LAD) for employees unable to perform their jobs due to other disabilities. The Amendment applies to New Jersey employers of at least fifty (50) employees.
The final version of the Bill applies to a previously injured employee that has reached MMI and is unable to return to his prior position of employment. Thus, when analyzing the applicability of the law, the first issue is whether the employee is “unable to return” to his prior position. This would require an analysis of the employee’s limitations and whether they are inconsistent with the essential functions of the prior position. If the answer to that is “yes,” then the Bill states that the employer “shall provide a hiring preference” to this employee for any “existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”
Hiring preference is not expressly defined in the Amendment. However, it could be construed as requiring the company to first consider the injured employee for an existing, unfilled position, and if that injured person and other candidate(s) are equally qualified, then the injured employee should be placed in the position. The questions that will arise are when a person claims that they can perform the essential function of the available job, and the employer disagrees. If it is a labor-type position, where the essential functions are measured by physical limitations such as lifting, standing etc., then it can be objectively determined by medical reports and/or testing. But it is foreseeable that some employees may claim that they can perform the essential functions of, for example, a managerial job, when their past employment was solely labor-based.
The Bill does not affect the right to request a reasonable accommodation for the employee’s prior position under the NJ LAD. An employee who perceives that they have not been given the required preference under the law could bring claims of disability discrimination under the NJ LAD. While they could ordinarily bring such a claim absent this new Bill, this Amendment adds additional potential further justification for such a claim.