NJ Presumes Workers Comp Coverage for NJ Essential Workers Who Contract COVID-19

Ballard Spahr LLP

Ballard Spahr LLP

In a long anticipated move, New Jersey has again acted to provide COVID-19 related benefits to workers throughout the State. New legislation creates a rebuttable presumption that, absent demonstrable proof to the contrary, “essential” workers who contract COVID-19 have done so at work and will be entitled to workers compensation coverage and benefits for their illness. Signed by Governor Phil Murphy on Monday, September 14, 2020, the law went into effect immediately and is retroactive to March 9, the date of the Governor’s initial executive order declaring a state of emergency.

The law is broadly applicable to health care workers, public safety workers, and other essential employees. “Health care workers” include individuals employed by a “health care facility,” which is defined to include a facility providing any type of patient care. Public safety workers include any member, employee, or officer of a paid, partially paid, or volunteer fire or police department, force, company or district, a Community Emergency Response Team, a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic, or advanced medical technician. Other “essential workers” covered under the statute are those who are deemed essential by the Governor and those who work in positions 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 needed for essential business operations. The presumption that a COVID-19 positive diagnosis is work-related may be rebutted by a preponderance of the evidence showing that the worker was not exposed to COVID-19 while working in the course of his or her essential employment. The “preponderance of the evidence” standard essentially means that an employer must prove “it was more likely than not” the employee contracted COVID-19 outside of work.

Where such proof cannot be mustered, the illness is fully compensable for the purpose of workers’ compensation benefits, ordinary and accidental disability retirement, and other benefits provided by law to those suffering a work-related injury or illness. Employees filing claims under this new legislation must be treated as any other employee seeking such benefits, and employers may not reduce or limit benefits because an employee makes a claim under the new legislation.

Businesses will note that any benefits paid under the new law will not count toward an employer’s experience rating for workers’ compensation insurance premiums.

It is also worth mentioning that the anti-retaliation provisions of the workers’ compensation statute will extend their protections to those who claim benefits under this law.

Finally, as noted, the new legislation has retroactive application. Thus, businesses should expect claims to be filed seeking coverage and benefits for COVID-19 cases arising over the last six months, as well as going forward. Those who used paid time off for COVID-19 absences during that time period may seek to recoup that time and receive workers’ compensation payments instead. For employees who used emergency paid sick leave under the Families First Coronavirus Response Act (FFCRA) for COVID-19 absences, the FFCRA explains that it does not diminish or reduce other benefits and, therefore, employees may now seek to cover those absences with workers compensation and “save” FFCRA leave for another, covered reason.

The key takeaways from this legislation:

  • Employers of essential employees should be prepared for an uptick in workers’ compensation claims for COVID-19 illnesses.
  • Those employers should carefully consider whether to challenge such claims based on the rebuttable presumption standard.
  • Employers should treat employees making such claims as they would other individuals making claims for work-related injuries or illness.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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