New Jersey has introduced a new bill into law that gives hiring preference to all employees that have reached maximum medical improvement from a work-related injury. This new law amends the New Jersey Workers’ Compensation Law and will essentially extend similar accommodation protections to those already provided by the New Jersey Law Against Discrimination to employees who are incapable of performing their jobs due to work-related injuries.
These new rules will apply to all employers in New Jersey with 50 or more employees. This will only apply to employees that suffer injuries related to work and have reached the maximum medical improvement (MMI) as provided under the New Jersey Workers’ Compensation Law (NJWCL). MMI status essentially means that any additional treatment of the work-related injuries will not result in any improvement to the employee’s condition. Also, they are still incapable of performing their original position but are capable of performing some work. This rule exempts both contractors and professional athletes.
This means that employees that have recovered from a work-related injury to the furthest extent which they can but cannot return to their original position will receive hiring preference for other unfilled positions which are within their abilities. The employee must still be able to perform the essential duties for these positions, and employers are not required to clear existing employees from a position to accommodate these employees, nor are they required to create a position.
There are a number of questions for how these amendments will exactly affect employers’ hiring practices. Notably, these amendments, as well as the available legislative history, lack any definition of exactly what hiring preference entails. This could simply mean that if all other qualifications are equal, this status will be the tiebreaker. However, it could also mean that employers should consider it as more important than better qualifications. Further, it could be interpreted to require employers to hire these employees above all other applicants regardless of all other qualifications.
Another issue for employers that will still need to be ironed out is whether there is a maximum time period to this hiring preference. Upon a plain reading of the new amendments, it would appear that it applies solely to current employees. However, it does not explicitly state that employees who were injured years before reaching MMI are not considered for the hiring preference. Additionally, these amendments do not provide any indication of the enforcement procedures or penalties that will be applied to employers for noncompliance.
Regardless, employers should take steps to attempt to comply with the new amendments to the best of their ability and attempt to place employees that have attained MMI in a role they are capable of performing. This will require employers to pay attention to when an employee has reached MMI in order to determine if they qualify for hiring preference as well as for other possible accommodations.