eNotes: Workers’ Compensation – February 2022 – New Jersey

SIGNIFICANT LEGISLATIVE UPDATE

NJ LEGISLATIVE UPDATE

New Jersey Bill A2617/S2998 Creates a “Hiring Preference” for employees with a prior work injury who are released to MMI

On September 24, 2021, Governor Murphy signed Bill A2617/S2998 into law. While the impact of the law remains unclear, the purpose of the law is to create a “hiring preference” to an employee who has a prior work injury and has been released to Maximum Medical Improvement. The “hiring preference” is applied to businesses with fifty or more employees. Employees who can no longer perform their pre-injury jobs due to a work-related injury are now arguably provided with heightened protections than what is provided for in the New Jersey Law Against Discrimination. Under this amendment, the employer is requires to give preference to an injured employee who may be hired to fill an unfilled position. An employer is not required to create a new position for an injured worker.

While this Amendment went into effect immediately, the implications remain unclear. A definition of what constitutes a “hiring preference” is not included in the Amendment leaving how it should be considered in an employer’s hiring process unclear. There are several ways “hiring preference” could be interpreted. For example, one employer could use it as a tiebreaker or bonus point on an application for employment if all other things are considered equal. Or, it could simply mean that even if there are more qualified candidates, the “hiring preference” controls as long as the employee meets the minimum qualifications. This issue has not yet been litigated, so the definition remains unclear, and up to the individual employers at this time.

The Amendment is also silent as to repercussions against employers who are non-compliant. There are no mentions of penalties to be assessed against Employers, nor any mentions of a creation of a private right of action for the employee.

There are numerous concerning aspects to Bill A2617/S2998. Specifically, employers are being more restricted on who they can hire. Further, this Amendment potentially opens employers up to increased Workers’ Compensation liability. Once an employee sustains an injury, there is a greater likelihood of a re-injury. And, while it has always been against the law not to hire someone who requires reasonable accommodations, the creation of a preference could prevent employers from obtaining more qualified candidates. The upside here is that the amendment was created without any “bite,” and right now there are no listed consequence against an employer who is deemed not to be implementing the “hiring preference.” Employers will have to keep an eye on any developments and pending decisions coming out of the New Jersey courts to ascertain whether this Amendment has any significant impact on hiring processes.

Any questions regarding this case can be addressed to Caroline E. Gentilcore, Esquire, at cgentilecore@tthlaw.com or (908) 528-2600.
________________________________________

New Jersey Senate Bill S771 Expands coverage in parking lot premises cases

On January 10, 2022, the New Jersey Senate passed Senate Bill 771 (NJ S771), amending R.S.34:15-36. Bill 771 expands Workers’ Compensation coverage to parking areas provided by employers. Bill 771 specifically does so by re-defining when employment commences. The specific language of the amendment is as follows:

Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.

Prior to Bill 771, an accident was deemed work-related when it occurred within the course and scope of employment. Employment commenced when said employee arrived at the site of employment, and ended when said employee left work. Accidents that occur in areas that are not in control of the employer were previously deemed outside the course and scope. A parking lot injury is found compensable if the employer owns or controls/maintains the parking lot.

Bill 771 expands coverage to parking lots that employers designate or offer to employees as part of the employer’s work premises regardless of whether Employer has “control.” This expansion of the premises rule will increase the amount of compensable work injuries. If an employee has to travel to get from the parking location to the place of work and has an accident on the way, the accident is work-related. For example, an accident on a public street that occurs while the employee is in transit between the workplace and the designated parking area would be compensable under this amendment.

This is a major deviation from the prior case law. Specifically, Hersh v. County of Morris, 86 A. 3d 140 (N.J.Sup. 2014) where the Supreme Court denied an injury that occurred when an employee was hit by a care when crossing the street from an employer designate parking lot finding the injury to be outside the course and scope of employment.

While Bill 771 may decrease the amount of litigation over parking lot cases in New Jersey, the Bill 771 is expected to lead to increased coverage costs for Employers. The current trend in New Jersey is to expand workers’ compensation coverage placing increasing burden on Employers and carrier.

Any questions regarding this case can be addressed to Caroline E. Gentilcore, Esquire, at cgentilcore@tthlaw.com or (908) 528-2600.