On July 31, 2020, the NJ Assembly formally adopted Senate Bill 2380 to expand access to workers’ compensation benefits for workers who have contracted COVID-19. As amended, S2380 creates a rebuttable presumption of compensability for a broad set of COVID-19-positive workers qualifying as “essential employees” in New Jersey, so long as the infected individuals worked somewhere other than their own residence at the time of the infection. On September 14, 2020, Governor Murphy signed the subject legislation into law, effective immediately and retroactive to address all exposure from March 9, 2020 onward.
“Essential employees” is relatively broadly defined in the subject bill, and includes not only employees in the public safety, health care, transportation, hospitality and retail industries, but also any other employee defined as an “essential employee” in a state of emergency declaration by the Governor.
The law expressly defines “essential employee” as an employee in the public or private sector who, during a state of emergency:
- is a public safety worker or first responder, including any fire, police or other emergency responders;
- is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
- performs functions which involve physical proximity to members of the public and are essential to the public's health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
- is any other employee deemed an essential employee by the public authority declaring the state of emergency.
The law also provides that workers’ compensation claims paid as a result of the rebuttable presumption provided by the bill are not to be considered in calculating an employer’s experience modifier rate or otherwise affect an employer’s insurance premium rate for the employer’s workers’ compensation policy. As noted above, this law is retroactive to March 9, 2020, the date of Governor Murphy’s declaration of a public health emergency with respect to the coronavirus disease 2019 pandemic.
Under this legislation, the presumption of compensability could be rebutted by demonstrating, on a preponderance-of-the-evidence basis, that the affected worker was not exposed to the disease while working in the place of employment.
In short, businesses which have remained open and operational throughout the pandemic are likely to be seen as “essential” businesses, and thus, this new law would apply to claims made for alleged work-related exposure to the virus. We would then need to rebut the aforementioned presumption of having contracted same at work with evidence garnered via investigation and discovery. In short, the employer would need to show some evidence that the associate was definitely exposed to others with COVID-19, i.e., showing a higher likelihood of contraction outside the workplace, such as a family member in the household who was sick prior to the associate being diagnosed, etc.
Claims professionals and practitioners should be mindful of a wave of potential claims spurned by outside disability carriers and state agencies simply assuming that all New Jersey cases of COVID-19 are now simply work-related (based upon an erroneous understanding of the subject law), thereby issuing blanket denials of claims for what may otherwise be appropriate coverage. This will no doubt result in a surge of potentially defendable claims, as this new legislation simply creates a rebuttable presumption of compensability (and is not a blanket determination that all cases of COVID-19 are automatically work-related as a matter of law).
Attached to this article is a COVID-19 New Jersey WC Benefit Flow Chart which outlines the subject new law in practice based upon the burden of proof. If you have any questions regarding a specific case or fact pattern, please do not hesitate to contact one of the Workers' Compensation partners in our Mt. Laurel office. As every case is different, we are happy to be involved and provide pre-litigation recommendations and feedback.