Geaney: Meeting Committee Votes to Approve Hiring Desire Invoice| Staff Compensation Information

By John H. Geaney

Monday, February 1, 2021 | 58 | 0 | min read

Employers must be informed of a bill by the Assembly that would convert the Employee Compensation Act into an Occupational Health and Safety Act.

John H. Geaney

The Assembly’s Working Committee recently passed A 2617. The bill stipulates that an employer with at least 50 employees cannot give an injured worker who has achieved maximum medical improvement a recruitment preference, cannot return to his previous position, but the performance can perform essential tasks of an existing vacant position.

This bill is problematic for employers for many reasons: First, it seeks to convert a statutory benefits bill – the New Jersey Workers’ Compensation Act – into an occupational health and safety bill. Second, New Jersey already has labor laws that protect workers, 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 that it should not apply. In fact, there is no mention of the employer having the right not to offer a job to someone who meets the above criteria.

Suppose the injured employee is less qualified than another applicant for the vacancy. Does the injured worker’s status as one of maximum medical improvement trump the qualifications of the more qualified applicant? Suppose the external applicant also has a disability and is more qualified for the job. In which court would the law be enforced? New Jersey labor compensation judges have no authority to enforce labor law. It is clear that applicants cannot prosecute the failure to reinstate claims before the Workers’ Compensation Court.

The Employee Compensation Act provides medical, temporary and permanent benefits in the event of partial and complete disability. That’s all the law ever intended. If the law is only enforceable in a civil court, why is the new bill not considered part of the NJLAD? An overarching question employers will have is, what is this bill doing that NJLAD and ADA are not yet doing?

Nothing at all is mentioned in this bill about requests for reasonable accommodation, the need for interactive dialogue or the defense of the employer such as unreasonable difficulties. With that in mind, this bill appears to override existing disability discrimination laws.

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

“Work-related injuries can be traumatic and devastating. No injured employee should be left without work opportunities. This bill will ensure that those who cannot go back to their previous position can continue to make efforts to help their employers in another role.

“Those who have been injured in their jobs should not be excluded from unemployment if they cannot return to their previous position. These people are still valuable employees who can contribute to their employers and their company.

“Moving to work after an injury can be difficult. It is important for companies to offer these employees opportunities to continue contributing to the workplace, to provide for their families and to resume successful careers. “

These feelings are worth considering, but one must ask the committee members why an employee who has work-related spinal disease and achieves maximum medical improvement is entitled to better protection than an employee who has the same spinal disease from a congenital cause achieves maximum medical improvement? Why should labor rights depend on the status of workers’ compensation?

The answer is, they shouldn’t be and the calculation doesn’t make any sense. Anyone with a disability, whether professional or non-work-related, has the same right to reasonable accommodation under applicable state and federal laws. The committee’s statements suggest, in an astonishing way, that the New Jersey Law Against Discrimination – one of the most progressive in the nation – has suddenly become obsolete and inadequate. This will appear as news to employers and labor lawyers.

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