On September 14, 2020 New Jersey’s Governor signed a bill created a presumption of compensability for COVID-19 claims in New Jersey for “essential workers.” This law is retroactive to March 9, 2020.
This is video from our live Q & A on the impact of the new COVID-19 presumption in New Jersey workers’ compensation cases.
What Does the New Law Say?
The Law amends the New Jersey Workers’ Compensation Act (N.J.S.A. 34:15-1 et. seq.) to create a rebuttable presumption that the contraction of COVID-19 by an essential employee is work-related. See generally S2380, § 1.
What is a “Rebuttable Presumption”?
Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption made by a court that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty. A rebuttable presumption is often associated with prima facie evidence.
What Must an Employer Show to Rebut the Presumption?
The assumption afforded essential employees can be rebutted by an employer showing “a preponderance of the evidence showing that the worker was not exposed to the disease.” S2380, § 2.
Who Is An Essential Employee?
The new law states that the presumption applies to “essential employees” and includes:
- health care workers;
- public safety workers;
- any essential employee as defined by NJ Executive Order 103 of 2020 “as extended by subsequent Executive Orders.” S2380, § 1.
Included in the essential employee definition and then extended by way of subsequent Executive Order are:
- State employees necessary to carry out functions of Executive branch agencies (Order 103, page 4);
- County and municipal employees necessary to carry out services (Order 103, page 4);
- grocery/food store employees (Order 104, page 6),
- pharmacy employees (Order 104, page 6),
- medical supply store employees (Order 104, page 6 & Order 107, page 6),
- gas station employees ((Order 104, page 6),
- employees of healthcare facilities and ancillary stores within healthcare
facilities (Order 104, page 6 & Order 107, page 6).
- Grocery stores, farmer’s markets and farms that sell directly to customers, and other food stores, including retailers that offer a varied assortment of foods comparable to what exists at a grocery store (Order 107, page 6);
- Employees of Pharmacies and alternative treatment centers that dispense medicinal marijuana (Order 107, page 6);
- Retail functions of gas stations (Order 107, page 6);
- Convenience store employees (Order 107, page 6);
- Hardware and home improvement stores (Order 107, page 6);
- Employees in Retail functions of banks and other financial
institutions (Order 107, page 6);
- Employees of Retail functions of laundromats and dry-cleaning
services (Order 107, page 6);
- Employees of Stores that principally sell supplies for children
under five years old (Order 107, page 6);
- Pet store Employees (Order 107, page 6);
- Liquor store employees (Order 107, page 6);
- Car dealership employees, but only to provide auto maintenance and repair services, and auto mechanics (Order 107, page 6);
- Employees of Retail functions of printing and office supply
shops (Order 107, page 6);
- Retail functions of mail and delivery stores (Order 107, page 6).
- Law enforcement officers, fire fighters, and other first responders (Order 107, page 10);
- Cashiers or store clerks (Order 107, page 10);
- Construction workers (Order 107, page 10);
- Utility workers (Order 107, page 10);
- Repair workers (Order 107, page 10);
- Warehouse workers (Order 107, page 10);
- Lab researchers (Order 107, page 10);
- Information technology maintenance workers (Order 107, page 10);
- Janitorial and custodial staff (Order 107, page 10);
- “Certain administrative staff necessary to ensure essential operations” (Order 107, page 10);
- Any employee necessary to operations of newspapers, television, radio, and other media services (Order 107, page 12);
- Employees providing childcare services to “essential employees” (Order 110, page 3);
As of this writing, more than 70 subsequent Executive Orders, most which dealing with COVID-19 matters, slowly reopening New Jersey (with some retrenchment) but increasing declaring business allowed to reopen in some capacity. It is unclear if the term “subsequent Executive Order” refer to all of these industries and employments, which at this time include nearly all employments.
When Would This Law Take Effect?
This law is retroactive to March 9, 2020.
What Claims Could Be Impacted?
Any claim for COVID-19 related infection arising after March 9, 2020 and alleged by an “essential employee” would be impacted by this retroactive law. Claimants who have already brought workers’ compensation claim would be entitled to the benefit of the presumption. Any pending civil claims for workplace harm would be impacted as the workers’ compensation bar would apply (if the claim is compensable).
How Will This Impact Employers?
- This law will encourage the filing of workers’ compensation claims for COVID-19 infections.
- This law makes defending an occupational infection case much harder for employers.
- This law provides that losses associated with workers’ compensation claims are not be included in calculating an employer’s Experience Modifier Rate or otherwise affect an employer’s insurance premium rate for the employer’s workers’ compensation policy.
- This law may insulate employers from civil liability for claims brought by employees as employers will be able to invoke the worker’s compensation bar to those actions (N.J.S.A. 34:15-8).
How Will This Impact Insurance Carriers?
The bill provides that workers’ compensation claims paid as a result of the rebuttable presumption provided by the bill are not to be considered in calculating an employer’s Experience Modifier Rate or otherwise affect an employer’s insurance premium rate for the employer’s
workers’ compensation policy.
This means that carriers will be exposed for the costs of medical care, lost time, and permanency benefits associated with claims without recourse to the policy holders. Presumably this is based on the expected “one time” nature of the losses.
Have a Question About This Article?
How Can I Ask Questions and Attend Live Training on this Change in the Law?
We are holding an informational webinar and question and answer session on Thursday, September 17, 2020. You can register here for this webinar.
About New Jersey Workers’ Compensation Defense at Lois Law Firm
We represent insurance carriers, self-insured employers, third party claim administrators, and employers before the New Jersey’s Division of Workers’ Compensation. Our founding partner, Gregory Lois, is co-author of the LexisNexis “Practice Guide to Workers’ Compensation in New Jersey” (2017, ISBN:9781632838735) and served as Law Clerk to Hon. Joan Mott, Administrative Supervisor of Workers Compensation.
Along with partner Joe Jones and a dedicated team of experienced attorneys and paraprofessionals, we handle New Jersey cases from cradle-to-grave. We want to be by your side, moving cases aggressively to closure from the start of litigation all the way through to settlement.
We only assign one attorney and one paralegal to each case. The attorney/paralegal assignments are made based on the court the case will be listed in.
Our approach in New Jersey.
Within seven (7) days of referral, we provide your adjuster with a comprehensive legal action plan and budget, setting out the likely exposure, plan of action to get the case to close, analysis of any potential legal defenses, and identify the handling/trial attorney and paralegal assigned to the case. We provide you with any court- or venue- specific information, such as who the judge is, evaluation of the treating providers, best IME doctor to use, etc.
We then assign the matter to a handling attorney, who each handles a specific venue (or venues). The same attorney and paralegal are assigned to a case from beginning to end.
Who we are.
All of our attorneys are 100% dedicated to defending worker’s compensation claims. While we do some associated general litigation (usually subrogation related to the workers’ compensation claims we handle) all of my attorneys focus their practice on workers’ compensation.
We assign attorneys to specific courts and not to clients or matters. This way, your attorney is an expert on his/her specific court and judge. We have tried dozens of cases to conclusion this year in each of the courts we go to. We are aggressive in pursuing appeals.