On June 2, 2021, and on June 25, 2021, we reported on Senate Bill 2998 (Companion bill to A2617) which sought to amend the Workers' Compensation Statute as it involved individuals who sustained work-related injuries and are unable to return to their pre-injury position after they are discharged from care. The legislation provided that such individuals be given “a hiring preference” for any unfilled position offered by an employer for which the injured worker can perform the essential functions. After the legislation passed both houses in the New Jersey legislature on June 25, 2021, the bill went to the Governor where it awaited final approval.
On September 24, 2021, the Governor finally signed this legislation into law. Under normal circumstances, the bill would have become law after 45 days once it passed both legislative houses if the Governor had taken no action, but that deadline is only applicable when the Legislature is in session. Since the Legislature was not in session during the latter part of the summer, this gave the Governor additional time to consider this bill.
Our June 2, 2021, legislative update discussed the concerns about this legislation and its impact on the Workers' Compensation Statute. While the legislation itself was approved by mostly all legislators, only two legislators voted against it, what is telling about this legislation and why it garnered such widespread support is that it appears to be more of a “feel-good” law in providing some employment security to a covered injured worker. Since there is very little if any enforcement powers provided in this legislation, it simply states that the “employer shall provide a hiring preference” to such employees while providing no direction on how that is to be accomplished, nor any penalties for any violation for failing to provide a hiring preference.
The lack of any real instruction with this legislation is of some concern as it will likely only add to unnecessary and confusing litigation in the Workers' Compensation Court, and perhaps in the Superior Court. It seems highly unlikely that the Workers’ Compensation Judges will feel empowered to address and rule upon post-injury hiring practices based on this bill. They have never addressed employment issues before, and it seems unlikely that they would feel obligated to do so now. The real protection for such employees is already in the books, as noted in this legislation in the first place, where it declares that: “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 (LAD). The LAD, and other statutes that protect individuals against employment discrimination already provide enforceable protections to employees within the state."