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COVID-19 Presumptions for Essential Workers Bill Moves to Governor’s Desk in New Jersey

New Jersey ‘s Legislature has passed Bill S2380, which creates a presumption in favor of compensability of all COVID-19 claims for those working in “essential” businesses. This new law is on the Governor’s desk for signature; we will update this article when the bill is signed.

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:

Included in the essential employee definition and then extended by way of subsequent Executive Order are:

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 of 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.

What Happens Next?

The bill is headed to Governor Murphy’s desk for him to sign into law.

When and if that happens we will update this article.

Have a Question About This Article?

Contact Greg Lois.

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