New Jersey has passed a law establishing a rebuttable presumption for certain “essential” workers regarding diagnoses of COVID-19 for employment-related benefits, including workers’ compensation
The only way to rebut the presumption is for the employer to show by a preponderance of the evidence “that the worker was not exposed to the disease”
The bill also establishes that employees are not required to use paid leave or any other contractual time off to cover any periods of incapacitation by COVID-19, including by self-quarantine
On September 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill 2380 into law. The bill establishes a rebuttable presumption for certain “essential” workers regarding diagnoses of COVID-19 for employment-related benefits, including workers’ compensation. To rebut the presumption, the employer will have to show by a preponderance of the evidence “that the worker was not exposed to the disease.” The bill also sets out that the amount of time the employee is incapacitated, including by self-quarantine, shall be considered as “on duty time.” Employees will not be required to use paid leave or any other contractual time off to cover the period of incapacitation. The law takes effect immediately, and is retroactive to March 9, 2020.
According to the bill, “The presumption shall only apply to an essential employee who performs functions pertaining to those roles and involving interactions with the public during the coronavirus public health emergency.”
Implications for New Jersey Workers’ Compensation
Traditionally, for an employee/petitioner to prevail on a New Jersey Workers’ Compensation claim petition they must prove that the injury or occupational exposure occurred within their scope of employment. The burden of proof was on the petitioner to show that the accident or occupational exposure occurred at work. Workers who fit the criteria specified in the bill will benefit from the burden being shifted to the employer. Employers have to prove that the worker was never exposed to COVID-19. This will likely make the prospect of filing such a claim more attractive to workers affected by the virus. The possibility of asymptomatic spread of COVID-19 and the early limitations on testing and contact tracing may make it difficult for employers to show by a preponderance of the evidence that the worker was not exposed to the virus at work. Considering these facts, we expect to see more COVID-19 claims litigated in the New Jersey Workers’ Compensation Courts.
Recommendations for New Jersey Employers
The passage of this bill means that New Jersey employers should go back to review all previously denied COVID-19 workers’ compensation claims to determine whether they might now be compensable. For the majority of the claims, the claimant will have recovered and returned to work. Even for such cases where the claimant already received medical and temporary disability benefits, the main incentive for workers to file a claim is to seek permanency benefits.
Even with this new law, workers will still have to prove that they suffered a functional loss that affects their work or daily life to establish permanent disability. A prompt and thorough investigation into pre-existing conditions will be essential to an effective defense.
Goldberg Segalla remains ready to assist in making compensable decisions and devising defenses. For more information or immediate guidance, contact:
- Esther F. Omoloyin
- Damon M. Gruber
- Sean J. McKinley
- Or another member of the Workers’ Compensation practice