COVID-19 and Workers’ Compensation

In September 2020, the New Jersey Legislature passed, and the Governor signed a new law S2380, amending the Workers’ Compensation Act, in light of the COVID-19 pandemic. The law provides for a rebuttable presumption that “essential employees” contracted the disease on the job. The law further expands the “Canzanella First Responders Protection Act” by increasing the types of workers deemed “essential employees” who are entitled to the presumption of a causal relationship. The Canzanella Act protects only first responders, such as medical workers, police officers, and firefighters, and was not limited to a particular illness. The Workers’ Compensation Act now defines the term “essential employee” as anyone who, during the declared state of emergency:

(1) is a public safety worker or first responder, including any fire, police, or other emergency responders;

(2) 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;

(3) 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

(4) is any other employee deemed an essential employee by the public authority declaring the state of emergency.

The term “essential employee” is now so broad, that it arguably includes anyone who was lawfully employed from March 9, 2020 until the state of emergency is lifted by the Governor. For example, a Judge of Compensation is likely to utilize the law to grant benefits to employees of grocery stores, clothing stores, pharmacies, construction companies, gas stations, restaurants, car or taxi services, banks, the pharmaceutical industry, farms, and food distributors.

Employers may only defeat the presumption that Covid-19 was contracted during the course of employment by proving that the worker was not exposed to the disease at work. It is extremely difficult to prove a negative. The new law is likely to prompt insurance carrier attorneys to ask claimants probing questions to determine whether the exposure occurred elsewhere. Claimants should be prepared to turn over their bank statements for an in camera review of whether they frequented restaurants, airports, retail establishments, or anywhere else crowds gather. Litigation will no doubt ensue regarding overbroad discovery requests.

The law specifically exempts State employees who were offered but refused the option to work from home. Interestingly, the law fails to exempt the employees of private industry who similarly failed to take advantage of such an option. Business owners will rightfully object to this double standard passed to benefit only State government. However, business owners may take solace in the fact that the new law specifically prevents insurance carriers from including Covid-19 claims in calculating the employer’s experience modifier rate. Claims filed by essential employees under the new law thus will not increase an employer’s workers’ compensation insurance premiums.

An essential employee who contracts Covid-19 will be presumed to have been exposed to the virus at work, and will be thus be entitled to receive full workers’ compensation benefits, including:

• 100% coverage of all related medical bills;
• up to 70% of their average weekly wages for the period they are unable to work and receiving active medical treatment; and
• an award of permanent partial or total disability benefits if the virus caused long-term damage to their health.

If you or a loved one was diagnosed with Covid-19 and would like to learn more about the benefits provided under the Workers’ Compensation Act, please reach out to Pezzano Law Group for further details at (908) 923-0020.