On September 24, 2021, Governor Phil Murphy signed into law Legislative Bill A-2617/S-2998 requiring employers with at least 50 employees to provide a hiring preference to an employee injured in a work-related injury who has reached maximum medical improvement and cannot return to the employee’s former position with that employer (hereafter the “WC Reinstatement Law”) Specifically, WC Reinstatement Law’s addition to Title 34 of the New Jersey Workers Compensation Laws (WCL) requires that:

Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement 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 duties of the position.

The reference to “maximum medical improvement” (MMI) is a term that is used when additional treatment will no longer improve the medical condition of the injured worker. Under the WCL a worker injured on the job is entitled to receive all necessary and reasonable medical treatment, prescriptions and hospitalization services related to the work injury are paid by the employer’s insurance carrier or directly by the employer if they are self-insured. The employer has the right to designate the authorized treating physician for all work-related injuries. The worker, in some cases, may be left with either partial permanent injuries or total permanent injuries.  Workers compensation authorized medical treatment, and temporary total disability benefits if applicable, are terminated when the worker is released to return to work in some capacity or if he or she has reached MMI.

The WC Reinstatement Law states that no provision contained within it “shall be construed to impair or affect any right of an individual with a disability to a reasonable accommodation under the Law Against Discrimination [LAD].”  In large part the WC Reinstatement Law’s reinstatement requirement to unfilled or vacant positions to which the worker is qualified to fill, parallels the duty an employer has to reasonably accommodate a worker’s disability under the LAD, “[a]n employer shall consider the possibility of reasonable accommodation before firing, demoting or refusing to hire or promote a person with a disability.”  N.J.A.C. 13:13-2.5(b)(2); Victor v. State, 401 N.J. Super. 596, 610 (App. Div. 2008); Potente v. County of Hudson, 187 N.J. 103, 110 (2006); Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super. 385, 396 (App. Div. 2002). The examples of reasonable accommodation provided in N.J.A.C. 13:13-2.5(b) “reflect a goal to eliminate barriers in the work environment.”  A.D.P. v. ExxonMobil Research and Engineering Co., 428 N.J. Super. 518, 543 (App. Div. 2012). Included as an express example of a “reasonable accommodation” are “leaves of absence”. N.J.A.C. 13:13-2.5(b)(1)(ii). N.J.A.C., 13:13-2.5 reads in part:

(b) An employer must make a reasonable accommodation to the limitations of an employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The determination as to whether an employer has failed to make reasonable accommodation will be made on a case-by-case basis

  1. Under circumstances where such accommodation will not impose an undue hardship on the operation of an employer’s business, examples of reasonable accommodation may include:
  2. Making facilities used by employees readily accessible and usable by people with disabilities;
  3. Job restructuring, part-time or modified work schedules or leaves of absence;

iii. Acquisition or modification of equipment or devices; and

  1. Job reassignment and other similar actions.

(Emphasis added)

To determine what appropriate accommodation is necessary, the employer must initiate an informal interactive process with the employee…This process must identify the potential reasonable accommodations that could be adopted to overcome the employee’s precise limitations resulting from the disability…Once a handicapped employee has requested assistance, it is the employer who must make the reasonable effort to determine the appropriate accommodation.”  Tynan, supra., 352 N.J. Super. at 400.

Although well intentioned and arguably superfluous the WC Reinstatement Law is given the long-standing duty of an employer to reasonably accommodate under the LAD, WC Reinstatement Law has some significant flaws. It is unclear if the workers compensation courts are the exclusive jurisdiction for claims brought alleging an employer’s failure to comply with the WC Reinstatement Law. In this same vein, given the relatively limited scope of the powers granted to workers compensation judges, it is unlikely they would have the legal authority to enter orders granting the extraordinary equitable relief of reinstatement. Likewise, the WC Reinstatement Law does not provide workers who prove violations to be entitled to an award of monetary damages, nor does it impose penalties on noncompliant employers. Also, the WC Reinstatement Law does not state if the employer can deny an injured worker who has reached MMI an open position such as in a situation where to do so would create and undue hardship to the employer or coworkers. Compare to the LAD where an employer is not required to provide a reasonable accommodation such as job reassignment if the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. N.J.A.C., 13:13-2.5(b).

At Mashel Law LLC, we effectively handle all LAD claims including those involving failure to accommodate a disability. Do not hesitate to call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page, for immediate help.  At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.

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