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For over 100 years it was accurate to say that the New Jersey Workers’ Compensation Act is a benefits law, not an employment rights law – but not for long. On May 20, 2021, the New Jersey Assembly voted in favor of creating a hiring preference for certain employees who reach maximum medical improvement (MMI). Under A2617 an employer with 50 or more employees must provide a hiring preference to an injured employee who has reached MMI, is unable to return to his or her own former position, but can perform the essential duties of an existing unfilled position.
When an employment law provision like this gets inserted into the New Jersey Workers’ Compensation Act, one must wonder what is the problem that the legislature is trying to resolve?
Perhaps the rationale was to reinforce existing employment laws under the New Jersey Law Against Discrimination and the ADA? No, that cannot be the answer because the laws are different. The NJLAD and ADA require the worker to prove a disability for coverage and the employee has the obligation to make a request for reasonable accommodation. A2617 does not contain a requirement that covered employees must prove a disability or request a reasonable accommodation. It seems to cover any and all employees who reach MMI and who cannot perform their former job – but only if their injury arose from work.
Perhaps the rationale was to solve the problem of employees not being able to find new jobs? The sponsors wrote, “Workers’ compensation injuries can be traumatic and devastating. No injured employee should be left without options for work?” This cannot be the answer either because the US Bureau of Labor Statistics announced on March 31, 2021, that the number of unfilled jobs in the United States is 8.1 million. New Jersey’s population is 3% of the nation’s total. Using three percent as a ballpark percentage for New Jersey, there would be 240,000 unfilled jobs in this state. It is easier today to find a job than it has been in half a century.
Maybe the rationale was to help a narrow category of workers who are financially disadvantaged by injuries? No, that does not make sense. Consider two employees with identical low back injuries who require fusion surgery at L4-5 and L5-S1. Employee A falls on January 1, 2021 on his deck at home and has fusion surgery. Employee B falls on January 1, 2021 at his work desk and has the same fusion surgery. Both reach MMI in May 2021. Employee A is not eligible for the $969 per week for lost time benefits (temporary disability benefits) because the injury occurred at home. Employee A is also not eligible for full medical coverage and must pay expensive deductibles and co-pays. Finally, Employee A is not eligible for partial permanent disability benefits in workers’ compensation.
By contrast, Employee B gets $969 per week for temporary disability benefits, has no medical bills to pay under workers’ compensation and eventually settles the workers’ compensation case for 40% permanent partial disability or $124,080 – all of which is tax free. So which worker did the legislature attempt to provide the job preference to? You guessed it: the one with the advantages of workers’ compensation coverage.
When it comes to the concept of a hiring preference for workers with injuries, there is no logical rationale to distinguish between seriously injured workers who get hurt at home versus those who get hurt at work. The NJLAD doesn’t make that distinction. The ADA doesn’t make that distinction. These employment laws are already adequate, and there is no need for A2617.
What does this bill do for the welfare of the state? Assuming A2617 in fact creates rights that did not previously exist for employees who cannot perform their job duties due to work-related injuries, one must wonder why would the legislature subject employers to potential for more litigation over and above the cost of workers’ compensation when so many employers in the northeast are already fleeing to more friendly business climates in the south?
John H. Geaney, Esq., is a Shareholder and Co-Chair in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.