Geaney: Assembly Committee Votes to Approve Hiring Preference Bill

Monday, February 1, 2021 | 0

Employers need to be aware of an Assembly bill that would turn the workers’ compensation statute into an employment protection law.

John H. Geaney

The Assembly Labor Committee recently passed A 2617. The bill will require an employer with at least 50 employees to provide a hiring preference to an injured employee who has reached maximum medical improvement, is unable to return to his or her former position but can perform the essential duties of an existing, unfilled position.

This bill is problematic for employers for many reasons: First, it attempts to turn a statutory benefits law — the New Jersey Workers’ Compensation Act — into an employment protection statute. Second, there are already labor laws in New Jersey that protect employees, such as the New Jersey Law Against Discrimination and the ADA.  Third, there is no explanation of the circumstances in which employers can reject the preference or prove it should not apply. In fact, there is no mention that the employer has any right whatsoever not to provide a job to someone who fits the criteria noted above.

Suppose the injured employee is less qualified than another applicant for the open position. Does the injured worker’s status as one who has reached maximum medical improvement trump the more qualified applicant’s credentials? Suppose the outside applicant also has a disability and is more qualified for the job. Further, in what court would the law be enforced? New Jersey workers’ compensation judges do not have the power to enforce employment laws. Clearly, claimants cannot prosecute failure to rehire claims in workers’ compensation court.

The Workers’ Compensation Act provides for medical, temporary and permanent partial and total disability benefits. That is all the statute has ever been intended to do. If the law is enforceable only in civil court, why is the new bill not being considered as part of the NJLAD? One overriding question employers will have is, what does this proposed bill do that the NJLAD and ADA do not already do?

This proposed bill also fails to mention anything at all about requests for reasonable accommodation, the need for an interactive dialogue or defenses of the employer such as undue hardship. In that sense, this proposed bill seems to override existing disability discrimination laws.

Upon committee approval of the legislation, the sponsors issued the following joint statement:

“Work-related injuries can be traumatic and devastating. No injured employee should be left without options for work. This bill will ensure that those who are unable to return to their previous position will still be able to put their efforts towards helping in a different role for their employers.

 “Those who have been injured in their place of work should not be cast aside with unemployment if they cannot resume their previous position. These people are still valuable employees who can contribute to their employers and company.

“The transition back to work after suffering an injury can be difficult. It is important for companies to offer ways for these employees to continue to contribute in the workplace, provide for their families and resume successful careers.”

These sentiments are worthy of consideration, yet one must ask the committee members why would an employee who has a work-related spinal condition and reaches maximum medical improvement be entitled to greater protection than an employee who has the same spinal condition from a congenital cause and reaches maximum medical improvement? Why should employment rights be dependent on workers’ compensation status?

The answer is, they shouldn’t be, and that the bill makes no sense. Anyone who has a disability, be it work- or non-work related, has equal rights under existing state and federal laws to reasonable accommodation. The committee statements stunningly suggest that the New Jersey Law Against Discrimination — one of the most progressive in the nation — has suddenly become outdated and inadequate. This will come as news to employers and employment lawyers.

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.