By Marisa Kindberg, Staff Writer
Last year, New Jersey Governor Phil Murphy signed into law amendments to the Workers Compensation Act. These amendments require employers with 50 or more employees to provide a “hiring preference” to employees who have reached maximum medical improvement (restored as the permanent character of a person’s injuries will permit) following a work-related injury but are unable to return to their previous position and perform the duties of the job. However, these amendments have left New Jersey employers and employees with confusion regarding their rights.
The new amendments do not define what a “hiring preference” is or how candidates will know if they have been passed over. Additionally, the remedies for aggrieved employees and obligations for employers remain unclear since the amendments do not specifically provide for a legal remedy for a failure to comply with the new rules. That’s not helpful.
Civil Service Statute
While New Jersey has not defined what is meant by the term “hiring preference”, the Civil Service Law allows employers to give hiring preference to veterans. This law provides that appointments and promotions in civil service of the State of New Jersey shall be made “according to merit and fitness” however, “preference” may be given to those who have served in the military. N.J.S.A. Const. Art. 7, § 1, ¶ 2
The term preference has only been defined by N.J.S.A. 11A:5-4 regarding preference towards disabled veterans. N.J.S.A. 11A:5-4 provides that “disabled veterans who receive passing scores on open competitive examinations shall be placed at the top of the employment list in the order of their respective final scores”.
While laws provide for a hiring preference for disabled veterans, it remains unclear if the same definition will be used in the New Jersey Workers Compensation Act amendments. There are currently no published cases that have defined the term. Also not helpful.
State and Federal law already provides that employers must offer employees a reasonable accommodation when they have a qualifying disability.
New Jersey’s Law Against Discrimination provides that employers must make reasonable accommodations for an individual with a disability unless the accommodation would impose undue hardship on the business’s operation. New Jersey law provides several examples of a reasonable accommodation including “Making facilities used by employees readily accessible and usable by people with disabilities; Job restructuring, part-time or modified work schedules or leaves of absence; Acquisition or modification of equipment or devices; and Job reassignment and other similar actions.”.1
Under Title I of the Americans with Disabilities Act, federal law says that employers must provide qualified individuals with reasonable accommodations in the workplace. A reasonable accommodation is defined as “a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.”2 Modifications may include allowing an employee to work remotely if they are immunocompromised, providing products, equipment or software, or a flexible work schedule.3
The new Workers Compensation amendments do not affect disabled New Jerseyan’s rights to sue under the Americans with Disabilities Act or the New Jersey Law Against Discrimination. Rather, the amendments seem to supplement protections against discrimination and allows employees another cause of action when they have been wrongfully discriminated against in the workplace.
It is important for both employees and employers to stay updated on the amendments to ensure employees get all of the protections that they are entitled to under state and federal law, as confusing as they may be.
Marissa Kindberg is a third year law student at Rutgers University-Newark, where she is a member of the Rutgers Italian American Law Student Organization and is the Research and Technologies editor for the Women’s Rights Law Reporter.