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Hiring Preferences for Employees Terminated Due to Workplace Injury

By Thomas McKinney

New Jersey Governor Phil Murphy signed a new law on September 24, 2021, which went into immediate effect. The new law imposes a new requirement on employers regarding hiring preferences to those employees who have lost their jobs due to workplace injury. As no one or no workplace is immune from accidents or illnesses from arising, it is important for New Jersey employers and employees alike to be aware of this new law and its implications.

Hiring Preferences for Employees Terminated Due to Workplace Injury

The new law is actually an amendment to New Jersey’s Workers’ Compensation statute. The amendment directs employers to give hiring preference to employees who have lost their jobs due to sustaining a workplace injury. More specifically, the law applies to those employers who have 50 or more employees. Furthermore, the hiring preference is supposed to go to those employees who have achieved maximum medical improvement after sustaining a work-related injury preventing them from returning to their former job. Maximum medical improvement refers to the point in the course of medical treatment where a patient is not expected to make any further improvements with more medical interventions.

It is not uncommon for a worker who is injured on the job to be unable to physically perform their job even with reasonable accommodations provided. It is also not uncommon for injured employees to have their position filled while taking workers’ compensation medical leave. In either situation, the new amendment to New Jersey’s Workers’ Compensation law would give the injured employee preference should said employee apply for “any existing, unfilled position offered by the employer for which the employee can perform the essential duties of the position.”

It should be noted that the amendment places no requirement on an employer to create a new position in order to accommodate an injured employee who is unable to return to their former job after a workplace injury. It also does not require an employer to transfer an employee to another position in order to create a job opening for such an employee. The amendment only refers to vacant positions of an employer.

The law expressly provides that it does not limit nor does it restrict the right to reasonable accommodation granted to disabled employers pursuant to New Jersey’s Law Against Discrimination. Employers are required to provide disabled employees with reasonable accommodation as well as prohibit employers from discriminating against an employee for any past or present disability. There is also a prohibition against employers discriminating against employees who have filed a workers’ compensation claim.

These are the basic tenants of New Jersey’s new law, but there are some important areas of the law that remain unclear. For instance, how exactly will the mandated hiring preference work? Unfortunately, employers may have to wait for further light to be shed on this. The nature and extent of the required preference are not stated in the amendment itself.

Employment Law Attorneys

If you have questions regarding this new law as it pertains to the hiring process, you can seek trusted guidance with the employment law team at Castronovo & McKinney. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.