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Key New Jersey Legislation In 2022: Expansion Of Compensability Of Parking Lot Injuries And Resumption Of Public Health Emergency

By on January 13, 2022 in Legislation with 0 Comments

In the first few days of 2022, two major legislative developments have significantly impacted workers’ compensation law.  The legislation effectively repealing the Supreme Court decision in Hersh v. County of Morris, 217 N.J. 236 (2014) will have a long-term impact on workers’ compensation in New Jersey; the resumption of the public health emergency will likely have only a short-term impact.

Governor Signs S771

Governor Phil Murphy signed S771 on January 10, 2022, which added the following new language in N.J.S.A. 34: 15-36 in relation to compensability of accidents in parking lots:

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.

This new provision was a response to the aforesaid Hersh case, which involved an injury to an employee of the County of Morris, which rented space in a private garage for 65 employees.  The decision in Hersh created a great deal of controversy and discussion.  The facts were that Mrs. Hersh could not park in the county building next to her office because she lacked seniority, so she parked in the private garage in one of the 65 leased spaces.  She then walked one-half block to Washington Street.  While crossing the street, she was struck and was seriously injured by a motor vehicle which had run a red light. The petitioner’s injuries were found not compensable because the County did not own the garage and did not control the garage.  The Supreme Court found that the County did not derive a direct business interest from paying for employees to park in the private garage and noted that the accident occurred in a public street. The Court also commented that there was also no added or special hazard in crossing the public street.

                The new legislation is significant in the following respects:

  1. It may not matter any longer that the employer does not own or control the parking lot, particularly if the parking area is not adjacent to the employer’s place of business;
  2. It will also not matter that the injury occurred while the employee was walking on public property on the way to the employer’s place of business from a lot designated or provided by the employer. This accident is now compensable.
  3. What matters is whether the employer “provides or designates a parking area for use by an employee.”

In examining this bolded phrase more closely, one can say that the word “designates” is fairly clear in meaning.  A parking area marked off for one employer’s use for its employees will clearly fall within this definition.   But that has been the law for a long time!  There was no need for a new law to tell us the designation of a parking area by an employer means controlling parking.  The problematic word is the verb “provides.”  What is the legal definition of “provides?”  Well, “provides” is not really a word with a legal definition at all.  The dictionary definition is “makes available for use.”  Clearly, that applies to the situation in Hersh because the County leased and therefore provided parking.  But many employers lease space in a building and do not designate any specific parking area alongside the place of employment.  Yet there may be ample parking.  When asked by employees or job applicants about parking, such employers may respond that parking is provided, simply meaning that employees will not have to pay for parking.   Does an employer “provide” parking when the employer makes sure in its lease that its employees have access to parking lots at no cost to the employee, even if the employer does not own the lot or control the lot?

What if judges interpret the word “provided” in this expansive way?  Then virtually all injuries in parking lots will be found compensable now, whether the employer is just a tenant in the building or not.  That results in a complete reversal of the 1979 Amendments.   Only injuries occurring to employees who park in public streets will then be found non-compensable.  Such a reading would clearly conflict with the most important paragraph in N.J.S.A 34:15-36 in respect to commencement of employment:

Employment shall be deemed to commence when an employee arrives at the employer’s place of employment to report for work and shall terminate when the employee leaves the employer’s place of employment, excluding areas not under the control of the employer…”  This language is the heart of the so-called “premises rule.”  The new parking language did not remove the 1979 definition of commencement of employment. It is still there.  Control or the absence of control is essential to the definition.  The key language is: “excluding areas not under the control of the employer.” 

How does one square this language about areas not under the control of the employer with the language in the new law about an employer which provides a parking area?  Does the employer have to argue that the landlord, not the tenant, provides the parking area? If that is the argument, the counter argument will be that all employers which lease space pay for common area maintenance charges and therefore indirectly provide parking.  Using the wrong word in a statute can be like pulling on a thread.

In the opinion of this practitioner, S771 conflicts with the premises rule. The word “provides” is the problematic word that will lead to a plethora of appeals.  Counsel for petitioners injured in parking lots where space is leased are going to argue for broad interpretation of “provides,” and employers are going to argue that the law still excludes areas not under the control of the employer.  One does not need a crystal ball to predict that the Supreme Court ironically will someday have to resolve an inherent conflict created by a legislative response to negate the Supreme Court’s own 2014 decision!   My own guess is that the sponsors of this new law were thinking of how to counter the result in Hersh, which involved off-site parking leased by the employer.  If the law had just focused on off-site parking areas, there would not likely be a wave of future litigation over the meaning of “provides.” 

One other point is worth mentioning about S771, and it is a fairly common problem encountered with workers’ compensation legislation.  Just as with the passage of the Hand and Foot Bill two years ago, this legislation fails to make clear which cases will be covered.  By stating “this law shall take effect immediately,” the legislation did not answer whether the new law applies only to cases that are filed after January 10, 2022 or applies to all cases presently pending in the Division as of January 10, 2022.

The Resumption Of A Public Health Emergency

Executive Order 280 signed by Governor Murphy this week reinstates a public health emergency in New Jersey.  By way of background, Governor Murphy signed S2380 on September 14, 2021, which defined certain Essential Workers who contracted COVID-19 at work.  The law created a rebuttable presumption that the virus was work related for such Essential Employees.  The Essential Employee law specifically referenced the contraction of COVID-19 during the public health emergency.

In June 2021, Governor Murphy declared that the public health emergency had ended. The Governor did not mention anything about the end of the legal presumption, but many practitioners, including the undersigned, reasoned that there was no longer a presumption since there was no longer a public health emergency. This week’s renewal of the public health emergency will certainly be viewed by judges of compensation to mean that the presumption of compensability again prevails.  As readers know, this legal presumption shifts the burden of proof to the employer to disprove that the virus was contracted at work.  There is, however, no presumption of impairment. The burden of proof remains on the injured employee to prove a compensable impairment for purposes of obtaining an award of permanent partial or total disability benefits.

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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