201-880-7213

Defending Employers Podcast: Episode 159

COVID-19 Presumptions for Essential Workers in New Jersey

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:

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 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.

What is “Defending Employers: Audio From Lois Law Firm, Workers’ Compensation Defense Attorneys”?

This is the audio feed from Lois Law Firm’s popular webinar training series. Every month the Firm’s attorneys present different topics in workers’ compensation. Meant as a “101-” level training course, the attorneys present a fresh take on common issues in workers’ compensation defense.

Special Reports. When emerging legal issues arise that impact employers, Lois Law Firm publishes special presentations. These special events, hosted by attorneys and presented in plain English, make the emergent changes understandable for business owners, insurance carriers, and other attorneys.

Listen on Apple Podcasts
Listen on Spotify
Listen on Amazon Music
Listen on fireside.fm
Download the New Jersey Workers’ Compensation Law Handbook

Download Our New Jersey Workers’ Compensation Law Handbook

This is the 2023 edition of Gregory Lois’New Jersey Workers’ Compensation Law Handbook.”

THE MOST PRACTICAL, up-to-date, and easy-to-understand guide to workers' compensation claims in New Jersey. This book is designed for employers, attorneys, claim adjusters, physicians, self-insured employers, and vocational rehabilitation workers. This guide is written in plain English by a New Jersey State attorney and provides a detailed analysis of relevant statutes and regulations; a complete recap of recent court decisions including 2021 & 2022 cases; and a full description of current practice.

Download Now

Learn More About New Jersey Workers’ Compensation Defense at LOIS

For more than 20 years we have represented insurance carriers, self-insured employers, third party claim administrators, and employers before 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 partners Karen Vincent and Joe Jones (New Jersey Practice Group Team Leader) 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.

Learn More

Get articles delivered to your inbox, once a month.

Subscribe Today!