Legislation>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.

The post Proposed PTSD First Responder Bill A2886 Raises Questions appeared first on NJ Workers' Comp Blog.

The New Jersey Assembly recently introduced legislation, A3511, which would force every workers’ compensation, PIP and health insurance carrier writing insurance in New Jersey to provide coverage for medical cannabis. This legislation overreaches into the contractual bargaining between consumers and insurance companies and will no doubt drive premium costs higher.  This legislation appears to be an attempt to codify and expand on the ruling in Hager v. M&K Construction, 246 N.J. 1 (2021).

Readers may recall that a near identical bill (A1708) was passed by the New Jersey Assembly Appropriations Committee on October 26, 2020 while Hager was slated to be heard by the Supreme Court of New Jersey.  Thereafter the Supreme Court in Hager affirmed the Appellate Division decision to require the workers’ compensation carrier to provide medical marijuana as a reasonable and necessary medical treatment under the facts of that particular case.  

If this new bill is passed, employers and their carriers must include coverage for medical use of cannabis, the use and sale of which is currently prohibited under federal law.  The relevant portion of the proposed bill reads, “Notwithstanding the provisions of subsection a. of this section, an employer or workers’ compensation insurance carrier or private passenger automobile insurance carrier shall provide coverage for costs associated with the medical use of cannabis…” 

The bill is puzzling because it presupposes that the use of medical marijuana is a common and historically accepted type of medical treatment when in fact it remains highly controversial.  Many pain medicine doctors still have reservations about using medical marijuana as a safe alternative to other more historical treatment.  Some do not believe that there is sufficient proof that the use of medical marijuana reduces dependency on opiates.  That was an important fact in the Hager case because Mr. Hager testified that marijuana helped him wean off opiates.

Even if this bill should be enacted, defense counsel will still raise the issue in individual cases whether the use of medical marijuana is “reasonable and necessary,” cornerstone language from N.J.S.A. 35:15-15.  Physician discretion in evaluating the reasonableness of medical treatment is crucial given that two injured workers can have the same injury, but one may require different treatment to restore the function of the body.

Enacting a law that requires carriers to include coverage for a controversial medical treatment will not only increase insurance costs for all employers and taxpayers but it will also likely lead to further litigation.

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

The post Proposed Cannabis Bill A3511 Raises Serious Legal Issues appeared first on NJ Workers' Comp Blog.