On January 11, Governor Murphy Reinstated The Public Health Emergency To Respond To The Omicron COVID Variant; Does Reactivation Of The COVID Presumption Statute Naturally Follow?

On May 11, 2020, as a response to the “original” COVID pandemic New Jersey enacted a COVID presumption statute which created a rebuttable presumption that “essential employees” who contracted COVID19 did so as the result of their employment. That law defined essential employees as employees who are in the public or private sectors performing a number of positions; to name just a few, as public safety workers, first responders, healthcare service employees, transportation workers, residential services etc. There was also a “catch-all” category of any other employee deemed an essential employee by the public authority declaring the state of emergency. The classification of essential employee was treated quite liberally by the petitioner’s attorney’s bar, as the members of the insurance industry and defense bar will attest. The COVID presumption ended with the governor’s termination of the health emergency on June 4, 2021.

In response to the current surge of COVID cases, Gov. Murphy reinstated the public health emergency on January 11. Immediately employers are asking if this would mean that the rebuttable presumption for “essential employees” was back in force? Our first impression is that yes, it will be in force and we will return to the situation where essential employees are covered by the rebuttable presumption in the event they contract COVID 19.

Our belief that this rebuttable presumption will again be the law is based on the language of the original 2020 statute itself. That language is quite clear and it states it will be effective “…during the public health emergency declared by an Executive Order of the Governor and any extension of the order. We further feel that this new declaration of a Public Health Emergency will be considered to be considered pursuant to the language of the statute as an extension of the original order.

Employers therefore should be aware that the rebuttable presumption statute is back in play and be extra careful with respect to covert protocols with in their place of employment. The attorneys at Brown Connery are always ready to answer any questions we can for our clients and the defense and insurance industries at large. If you have any additional questions, comments or concerns about this topic or any other issues related to your worker’s compensation needs, please feel free to contact the worker’s compensation group here at Brown & Connery, LLP via email or call 856-854-8900.

By:  Alfred P. Vitarelli, Associate at Brown & Connery, LLP