COVID-19 Pandemic and Impact on NJ Workers Compensation Claims
On May 12, 2020, the NJ Senate Labor Committee reported favorably on Bill S2380 designed to create a presumption of compensability for “essential employees” that contract COVID-19. The proposed legislation significantly impacts the NJ Workers Compensation Act by virtue of creating a presumption, albeit rebuttable, that an “essential employee” testing positive for COVID-19 contracted same as a result of their employment making the virus or disease a compensable work-related condition
By way of brief background, NJSA 34:15-31.4 provides workers compensation benefits to a certain class of public safety workers, including but not limited to, volunteer police and fire personnel. The purpose of Senate Bill 2380 is to expand this protection to another class of employees, those acting in the private sector in response to Governor Murphy’s declared state of emergency amid the COVID-19 pandemic. By doing so, it is necessary to focus on the description of an “essential employee,” defined as any health care worker, public worker or other employee considered essential “in support of gubernatorial or federally declared statewide emergency response and recovery operations” or an “employee in either the public or private sector with duties and responsibilities that are considered “essential to the public’s health, safety and welfare.”
References to “any health care worker” is overly broad and not only serves its intended purpose of covering those employees working on the “front lines”, but all employees working in the medical field regardless of the specific position held and their associated job responsibilities. There is, however, a silver lining in that expansion of coverage into the private sector for all health care workers only applies so long as the State continues to operate under an Execute Order state of emergency.
As stated above, while the proposed bill does allow an employer to rebut the presumption of compensability, it would be necessary to demonstrate by a preponderance of the evidence or, in other words, more likely than not that the employee was neither exposed, nor contracted the COVID-19 virus in the workplace. Absent an employer’s ability to demonstrate an employee contracted the virus from sources outside of their essential services during the pandemic, by a preponderance of the evidence, the employee would be considered as “emergency hazard health duty” and entitled to workers compensation benefits.
The fact remains, however, Senate bill 2380 greatly expands the scope of coverage under the NJ Workers Compensation Act. Should you have any questions regarding interpretation of the proposed legislation, its impact on an employer’s exposure and responsibilities or practical application of same (once signed into law), please do not hesitate to contact the Brown & Connery Workers Compensation Practice Group.
By: William T. Freeman, Partner and Eric E. Fingerman, Partner at Brown & Connery, LLP