In New Jersey, the applicable 2020 law (see, N.J.S.A. 34:15-31.11 et seq.) states that if an individual contracts COVID-19, there shall be a rebuttable presumption that the disease is work-related and fully compensable. However, the rebuttable presumption only applies if a number of conditions are met: 1) the contraction is “during the public health emergency….” 2) the petitioner was not working at home at the time of the contraction, 3) the petitioner was working “as a health care worker, public safety worker, or other essential employee.”
Each of these factors should be investigated to confirm if the rebuttable presumption should apply. Even if the presumption does apply, the circumstances of contracting COVID-19 can still influence the claim and defense, and are therefore worthy of investigation.
Employers can strengthen defenses in these claims by investigating both the petitioner’s activities near the time the petitioner caught COVID-19 and the circumstances of employment.
There are multiple tools employers can use for investigation of the petitioner’s claim. The employer should request the petitioner’s primary care doctor’s records, and the records from any other medical providers who treated the petitioner for COVID-19, to determine if the employee was visiting those medical providers for any other relevant reasons near the time of contraction. These records might also contain a more candid discussion of the circumstances of how and when the petitioner came down with COVID-19.
Social media searches can also shed light on the circumstances surrounding the petitioner’s exposure to COVID-19. Social media records could illuminate the petitioner’s activities near the time symptoms began, including whether the petitioner was travelling, attending large gatherings, or engaging in any other high-risk activities for catching COVID-19. Social media records may also reveal if any of the petitioner’s family members or other close contacts contracted COVID-19.
Finally, if the case is in litigation, the employer should request the petitioner’s answers to specific interrogatories, although this might require motion practice. Interrogatories can be tailored to seek information about the petitioner’s activities near the time symptoms began, information about petitioner’s compliance with masking/social distancing recommendations, contact tracing, the identities of his or her treating medical providers, and any of the above information not found in primary care records or social media searches.
The employer should also investigate the specifics of the petitioner’s employment. This would include any prevention measures implemented at the place of employment and the petitioner’s compliance with the same, any known COVID-19 cases among co-workers and whether the petitioner was in close contact with those co-workers, and the petitioner’s proximity to the public during the time in question. Investigation of these facts can be accomplished with informal interviews of supervisors and co-workers. It is also important to know whether the petitioner has a second employment. This can be confirmed by requesting the petitioner’s Social Security Earnings records or tax returns. If another concurrent employer is identified, the employer should determine whether the facts favor impleading the second employer to share responsibility for the claim.
While the information uncovered might not always (or even often) be enough to defeat the rebuttable presumption under a strict reading of the law, any doubt that can be sown about whether the petitioner contracted COVID-19 at work can strengthen the employer’s position in settlement negotiations, open the window to a full and final resolution, and provide a more favorable view of the employer to the judge.
If you have any questions about workers’ compensation claims for COVID-19 or how they impact your business, please contact: