A Capehart Scatchard Blog

Governor Signs Job Preference Law For Employees Who Have Reached Maximal Medical Improvement

By on September 30, 2021 in Legislation with 0 Comments

Readers of this blog are aware that earlier this year the New Jersey Assembly introduced legislation to create employment rights under the New Jersey Workers’ Compensation Act for workers who reach maximal medical improvement but cannot perform their job any longer.  Many employers have written to say they were shocked this bill was being introduced.  This week Governor Phil Murphy signed into law A2617, which provides as follows:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The bill, which applies to employers with more than 50 employees, is notable for what it does not say and what it does not answer. 

  1. Does it mean that if five applicants apply for a job and one of them is an existing employee who has reached MMI following a work-related injury, the job must go to the employee who is at MMI? Are there any circumstances where the employer can refuse to provide the open job to the existing employee?
  2. Does it mean that an employer is insulated from a law suit if the employer interviews each of the five applicants and then decides to make an offer to one of the non-employees based on a good faith perception of better credentials or qualifications? 
  3. Does it mean that the employer has an affirmative duty to advise any employee with a work-related injury who cannot perform his or her job of all other jobs that are now vacant or may be vacant in the near future before making termination decisions?  The answer is probably yes.
  4. Under the ADA or NJLAD the employee must make a request for reasonable accommodation, but this law doesn’t say anything about that.  Does this law really obviate the need for an employee to make a request for accommodation and instead put the burden on the employer to initiate a discussion of all open jobs?  Unfortunately, this seems to be the case. There will need to be great communication among department heads, HR and workers’ compensation professionals going forward.
  5. Since the law is now part of the NJ Workers’ Compensation Act, does the Judge of Compensation have the power to enforce this provision?  Or must an aggrieved employee file a civil suit?  Until now, a Judge of Compensation has had virtually no jurisdiction over employment issues.

The law says nothing about remedies, penalties, counsel fees for violations, or procedures to enforce this provision. The timing of the law could not be more ironic: there are estimated to be 11 million unfilled jobs in the United States, and hundreds of thousands of unfilled jobs in New Jersey.  It has never been easier to find a job than it is right now. 

This law does acknowledge that employers do not have to create a new position to accommodate an employee, but of course that is nothing new either.  That statement simply reflects existing law under the New Jersey Law Against Discrimination and the ADA. 

For defense lawyers and workers’ compensation practitioners, this provision is worrisome because the preference language can be stretched in any direction.  One must assume that legislators would not pass a soundbite law that added nothing to existing law.

An amendment to the original draft was added late to state, “Nothing in this section shall be construed to impair or affect any right of an individual with a disability to a reasonable accommodation under the ‘Law Against Discrimination.’”   But that raises the ultimate question.  What rights does this law provide over and above those existing rights that employees already had under the ADA or NJLAD?   What hole in the legal landscape was this provision designed to fill?


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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