Key Takeaways:

• An injury in a parking lot is likely compensable if the employer owns, controls, or provides a parking area or if the employer directs the employee where to park

• Recent statutory amendments and case law show both the Legislature and courts are set on expanding workers’ compensation liability in parking lots

• If a third party is found liable for the injury, the employer/carrier can recover a portion of the medical and disability benefits paid out in the workers’ compensation claim

As the winter months roll on and snow and ice continue to cover the asphalt and concrete, it is helpful to remind ourselves about the state of the law with regard to employee injuries that result from falling down in parking lots. N.J.S.A. 34:15-36 reads, in pertinent part:

Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.

As such, there are generally five ways an injury in a parking lot is compensable under New Jersey law:

1. The employee is performing a work function in the parking lot, i.e. taking out the trash.
2. The employer directs the employee where to park.
3. The employer owns the parking lot.
4. The employer controls or is responsible to maintain the parking lot.
5. The employer “provides” the parking lot for employees.

Categories 1 through 4 are fairly straightforward. However, category 5, subject of a 2022 amendment to the law, is more unclear. The term “provides” is somewhat ambiguous and will certainly lead to creative arguments from petitioner and respondent attorneys as to whether an employer “provides” the parking. For instance, if an employer leases an office that contains access to a parking lot, is that “providing” a parking area? In the past, the analysis would focus on whether the employer had control over that lot. With the 2022 amendment, petitioner attorneys will certainly argue that when an employer provides an office space with a parking area, it is also providing the parking area. To the contrary, respondent attorneys will argue that an employer can only provide what it owns and/or controls and, if it does neither, it does not provide the parking area.

There have not been any Appellate Division decisions interpreting the meaning of “provides” since the amendment was passed. However, one of the more recent Appellate Division decisions made prior to the amendment makes clear that the courts, in addition to the Legislature, are showing a willingness to expand liability in parking lot cases.

While a parking lot injury may be compensable in the Workers’ Compensation system, there is also the chance that some third-party actor could also be found negligent for their role in the employee’s injury, i.e. the snow removal company. If the injured worker files a civil suit alleging that some third-party, other than the employer, was negligent and recovers funds in the form of a settlement or judgment, the employer/carrier is entitled to recover a portion of the medical and indemnity benefits paid in the workers’ compensation claim. If the third-party recovery is more than the medical and indemnity benefits paid, the employer/carrier is entitled to recover two-thirds of the medical and indemnity benefits paid less $750 for costs of suit. If the third-party recovery is less than the medical and indemnity benefits paid in the workers’ compensation claim, the employer/carrier is entitled to recovery two-thirds of the third-party settlement, less $750 for costs of suit.

If you have questions about how this impacts your business, please contact:

• Noah L. Dennison
• Damon M. Gruber
• Sean J. McKinley
• Esther F. Omoloyin
• Or another member of our Workers’ Compensation practice group