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Proposed PTSD First Responder Bill A2886 Raises Questions

NJ Workers’ Comp Legislative Update

The New Jersey Assembly recently introduced legislation, A2886, which would provide employment protections for paid first responders diagnosed with work-related post-traumatic stress disorder.  The bill states as follows: An employer shall not discharge, harass, or otherwise discriminate or retaliate or threaten to discharge, harass, or otherwise discriminate or retaliate against an employee with respect to the compensation, terms, conditions, duties, or privileges of employment on the basis that the employee took or requested any leave related to a qualifying diagnosis of post-traumatic stress disorder.  Following a period of leave related to a qualifying diagnosis of post-traumatic stress disorder, an employer shall reinstate an employee whose fitness to return to work has been documented by a licensed physician or licensed mental health professional to the position and duties held by the employee prior to the leave.

The bill makes clear that the PTSD condition must arise from work by stating as follows:

b.   A diagnosis of post-traumatic stress disorder is qualified under subsection a. of this section if:

(1)        the diagnosis is made by a licensed physician or licensed mental health professional; and

(2)        as determined by the licensed physician or licensed mental health professional, the post-traumatic stress disorder arose:

(a)        as a direct result of the employee experiencing or witnessing a traumatic event during and within the scope of the performance of regular or assigned duties of the employee; or

(b)        due to vicarious trauma experienced by the employee as a direct result of the performance of regular or assigned duties of the employee.

A2886 would apply only to paid first responders, which of course includes law enforcement officers, firefighters, emergency and paramedic personnel, but also extends to 9-1-1 dispatchers, who may only “witness” trauma by telephone. 

The first question is why did the Legislature focus solely on medical leaves for PTSD?  What about medical leaves for spinal surgery, which are equally common, if not more common? Legislation by diagnosis can become an endless trend.  Moreover, federal law under the Family and Medical Leave Act already provides job protection for covered leaves.

This bill calls to mind A2617 which was signed into law on September 24, 2021.  That bill provided: “Following a work-related injury, an employer shall provide a hiring preference to an employee who has reached maximum medical improvement (MMI) and is unable to return to the position at which the employee was previously employed for any existing, unfilled position offered by the employer for which the employee can perform the essential functions of the position.”

The problem with A2886 and A2617 is that neither bill is needed since New Jersey law already forbids such discrimination.  New Jersey already has powerful anti-discrimination laws, namely the New Jersey Law Against Discrimination and N.J.S.A. 34:15:39.1. Both of these laws protect employees from discrimination. Section 39.1 is contained within the New Jersey Workers’ Compensation Act and protects employees who file workers’ compensation claims from wrongful discharge or discrimination related to the making of a workers’ compensation claim. 

The question that legislators must answer is what holes have they suddenly found that need to be filled in the expansive New Jersey Law Against Discrimination?   

For more information on the progress of this proposed legislation, contact the undersigned at jcottell@capehart.com.

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About the Author

About the Author:

Ms. Cottell focuses her practice in the representation of employers, self-insured companies, and insurance carriers in workers’ compensation defense matters.

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