A new law in New Jersey will have a significant impact on how infectious disease claims, particularly Covid-19, will be handled in New Jersey’s workers’ compensation system. The passing of this bill puts New Jersey in the ranks of many states that already have presumptions of compensability for certain classes of workers who contract Covid-19. On September 14, 2020, Senate Bill S2380 was signed into law creating a rebuttable presumption for the compensability of workers’ compensation claims for essential workers who contract Covid-19. This law also shifts the burden of proof to employers to prove that the essential employee, as defined in law, did not contract Covid-19 during the performance of his or her job duties.
General Purpose of the Act
The main purpose of the bill is to create the presumption that any employee defined as an “essential worker” who contracts Covid-19, did so in the course of the employment, unless this can be refuted by the employer. While there are statutes already in existence that protect certain emergency workers in general occupational disease cases, this bill applies specifically to the current pandemic, with expanded classes beyond emergency workers. The current statute applies to any essential worker who “performs functions pertaining to those roles and involving interactions with the public during the public health emergency declared by Executive Order 103 of 2020, as extended by subsequent executive orders.” This law is retroactive to the initial Executive Order 103, signed on March 9, 2020.
Who Are Essential Employees?
The statute defines essential employees as any employee that is considered essential in either the statewide or federal emergency response to the pandemic, or any employee in the public or private sector that has duties that are essential to the public’s health, safety and welfare.
There are two classes of essential workers listed in the statute:
(1) the employee is considered essential in support of gubernatorial or federally declared statewide emergency response and recovery operations; or
(2) the employee is an employee in the public or private sector with duties and responsibilities, the performance of which is essential to the public's health, safety, and welfare.
That statute goes on to define healthcare facilities and healthcare workers as those employed by healthcare facilities. It also defines public safety workers as those of paid, partially paid or volunteer fire or police departments, correctional facilities, medical techs, first responders, community response teams, etc.
Executive Order 103 includes some definitions of other essential employees, such as government employees assisting in the coronavirus response; employees of grocery stores, pharmacies, medical supply stores, gas stations, healthcare facilities, and ancillary stores within healthcare facilities. It would appear from the language of the executive order that this would apply to school employees who provide essential, non-educational services, such as providing food, or for childcare services if needed in emergency situations.
Since the passing of Executive Order 103, Governor Murphy signed Executive Order 107, which does create a fairly extensive list of essential retail businesses, and while this statute does not specifically indicate that this list will be used, since it modifies the essential businesses listed in Executive Order 103, it seems fairly clear that this list would be applied to the new statute. This list would include municipal, county, and state employees responsible for carrying out the functions of these executive orders, grocery store and food market employees, pharmacy and medical supply store employees, gas station attendants, hardware/home improvement employees, bank employees, employees of pet stores, mail and delivery stores, construction workers, utility workers, repair workers as well as childcare workers providing childcare for essential employees. The list is subject to amendment at any time, and clearly is not meant to be exhaustive.
What is a Rebuttable Presumption of Compensability?
Any employee who performs one of these essential jobs, and who contracts Covid-19 will be presumed to have contracted the disease through employment. However, this is a rebuttable presumption and is not conclusive, and “may be rebutted by a preponderance of the evidence showing that the worker was not exposed to the disease.” There is no definition given as to what may constitute a preponderance of the evidence in this case, and this will likely be a fact-based determination by each judge.
What is the Practical Impact?
The new law serves the purpose of trying to relieve economic impact for people who are working in vulnerable positions with enhanced exposure, and who contract Covid-19. It shifts the burden from the employee having to prove that they were exposed at work, to the employer having to prove, by a preponderance of the evidence, that they were not exposed at the place of employment. This imposes a burden on employers to review working conditions, keep track of workers potential exposures, and to do everything possible to limit exposure in the workplace.
This burden will be extremely difficult to rebut in certain circumstances. For instance, it would be virtually impossible to keep track of every coworker, vendor, and customer that a worker is in touch with throughout a shift, let alone over a longer period, when the specific time that Covid-19 was contracted cannot be determined. Whereas without this burden, it would be extremely difficult for a worker to determine exactly where they may have contracted Covid-19, that burden is lifted for them and that difficulty is shifted to the employer in defending the claim. It is also difficult to determine what would rebut the presumption here. This will be very judge dependent. For instance, if an employer can show that all appropriate social distancing guidelines were enforced, and the worker was appropriately distanced at all times, surfaces were cleaned routinely, plexiglass barriers were set up – would that be enough to rebut the presumption? There are constantly evolving opinions on whether the condition can be caught by airborne transmission even with appropriate social distancing.
It will be interesting to see how experts address issues of causation and what will be enough to rebut the presumption. Presumably, we would require an infectious disease expert or internist to review records and details of the work area and exposures to determine if exposure can be properly disproven to the satisfaction of the court.
As a practical matter, we have not yet seen a significant amount of Covid-19 claims in New Jersey, however, that may change for workers in these essential areas with the passage of this legislation.
The difficulties in defending these claims goes deeper than the basic presumption. It has been very difficult for even scientists and medical providers to pinpoint the exact impact of Covid-19 and what the long-term effects may be. Many of these claims may be limited to short term lost time, or minimal treatment with home quarantine as the condition clears, as it does for many people. However, there is very mixed science in terms of the longer-term impact. There have been reports of long-term cardiac or lung damage; people who seem to be unable to shake symptoms even months after contracting the initial condition, etc. If an underlying condition is impacted by contracting Covid-19 by way of aggravation, then that treatment would almost certainly be the responsibility of the Respondent. When the condition is cardiac or pulmonary in nature, this can turn into a long-term cost.
With this presumption, it will not be enough to produce an expert that indicates causation is in question. The burden will fall on the employer to produce facts that show, by a preponderance of the evidence, that Petitioner did not have the exposure at work.
Cases will have to be reviewed individually to determine the availability of defenses and how best to combat the presumption of compensability. Therefore it is critical that employers make sure they understand the potential long-term financial and legal consequences of how their efforts to protect employees from Covid-19 in the workplace can impact their businesses.