January 1, 1900

by Denise A. DaPrile

A frequently asked question by many employees, who are injured on the job, is whether their job would be available to them when they are able to return to work. Surprisingly enough, if the employee is not in a union or under a contract which specifies that the employee’s job should remain available, or that the employee has a specific amount of "leave" time before the position is deemed no longer available, the employee may be without a job.

Recent Decision

The decision in Malone v. Aramark Services addresses this issue. In Malone an employee had been injured on the job and, as a result, was out of work for over one year. When he attempted to return to work, the employer advised that there was no longer a position available, and he was discharged from that employment.

The employee in that case attempted to amend his complaint to add a cause of action for breach of a duty to hold his job open. The motion to amend the complaint to include this count was denied because under New Jersey law there is no such cause of action.

The Court in Malone specifically pointed out that New Jersey is "an employment at will State" and as such, an employee may be discharged from employment for any reason, with certain very specific exceptions. The exceptions include union-related job protection, or if there is an employment protection contractual exception. In Malone, there was no contractual employment exception nor was there any union involvement. As the employee was out of work for over a year, the Court found that employer had the right to deem his job position no longer available.

Other Avenues of Law

Federal law provides injured workers with additional job protections when out of work due to a work related injury. Under the Federal Family and Medical Leave Act (FMLA), an employee is allowed twelve weeks of leave. That individual cannot be fired due to the inability to work during that time frame. However, this only applies to an employee out of work to care for an injured or ill family member, not as a result of the worker’s own illness, injury or disability.

Other than the FMLA, an employee may also have rights under the New Jersey Law Against Discrimination (NJLAD), as well as the Worker’s Compensation Act. Under NJLAD, injured workers have protections afforded to them under the laws prohibiting discrimination against the handicapped, namely the American with Disabilities Act (ADA). Under ADA, the employee may take a leave of absence from work in order to recuperate or receive treatment as reasonable accommodation by the employer, but the extent of such leave would depend upon the facts of the case. However, even under the ADA such a leave may not be for an extended or indefinite period of time. Even with the protections afforded by the ADA, NJLAD and the FMLA, there is no blanket requirement that leaves must be granted to an employee, who would not be able to perform the job’s essential tasks. In fact, under the NJLAD, where leaves of absence are in excess of one year, Courts have determined that the employees are not capable of performing their essential job functions. Also under NJLAD, excessive absenteeism need not be accommodated even if the absenteeism is caused directly as the result of the disability otherwise protected under the Act.

Under the Workers’ Compensation Law (NJSA 34:15-7 et seq.), an employee injured on the job is afforded certain benefits including medical care, as well as, temporary disability payments of compensation. In addition, an employer is prohibited from retaliating against an employee who seeks workers’ compensation benefits under N.J.S.A. 34:15-39.1. In the event there is some type of violation of this statute and there is evidence of retaliation, a common law claim may arise which would entitle the injured worker to file for compensatory and punitive damages against the employer.

Conclusion

Overall, despite the fact that current law does provide substantial protection and benefits to injured workers, an employee’s job is not protected if he or she is out for a substantial amount of time. As the Court reasoned in the Malone case, while the laws prohibiting discrimination against the handicapped require some reasonable accommodations, holding a job opened for an extensive or indeterminate amount of time may become unreasonable. Thus, an employee’s job is not required to be held open for as long as it takes the employee to recover from a work related injury.

Denise A. DaPrile is an associate of Hill Wallack where she is a member of the Litigation Division and Workers’ Compensation Practice Group.