Parking Lot Amendment
On January 10, 2022, New Jersey Governor Murphy signed into law an amendment to NJSA34:15-36 as it pertains to the compensability of parking lot cases. The amendment states:
“Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when the employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.”
This amendment is viewed as a response to a prior decision by the New Jersey Supreme Court. In Hersh v. County of Morris, the New Jersey Supreme Court held that injuries were not compensable under workers’ compensation when sustained during travel on a public street from a parking garage not owned or controlled by the employer.
The practical implication of the amendment for cases involving injuries in parking areas designated by employers is that injuries are compensable from the time when a petitioner arrives at the parking area at the beginning of the work day to the time when a petitioner leaves the parking lot at the end of the work day. Injuries that occur on public property between the parking lot and employer’s premises are now compensable.
The factors involved in determining whether a parking area is “provided” by the employer are unclear based on this amendment. However, ownership and control of the parking lot are no longer determinative.
While this greatly expands the compensability of injuries in parking lots, there are still arguments to be made from a respondent’s perspective. One will be whether the employee traveled directly to/from the parking area to the place of employment or made deviation such as running an errand. Moreover, there will be argument as to whether the parking area is “provided” by the employer to its employees when there is no specific designation of employee parking.
Governor Murphy reinstated a public health emergency in New Jersey by issuing Executive Order No. 280 on January 11, 2022. This public health emergency will expire after 30 days, unless renewed. Governor Murphy initially declared the existence of a public health emergency on March 9, 2020 which was terminated by another executive order on June 4, 2021.
The practical implication of this Executive Order is a reinstatement of the rebuttable presumption of workers’ compensation coverage for COVID-19 cases for “essential employees.” Senate Bill 2380 was signed into law on September 14, 2020 and defined essential employees 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 reinstatement of a rebuttable presumption of compensability for COVID-19 cases contracted by “essential employees” means that the burden of proof will be on respondents again to disprove that COVID-19 was contracted at work for these “essential employees” until there is no longer a state of emergency.