A Capehart Scatchard Blog

The Essential Workers Legislation In New Jersey: What It Means and What It Does Not Mean

By on September 16, 2020 in Legislation with 0 Comments

On Monday, September 14, 2020, New Jersey Governor Phil Murphy signed S2380 dealing with COVID-19 and essential workers in respect to workers’ compensation benefits.  The bill was signed on the very last day before the bill would have automatically become law. 

It is important to consider what this bill does and what it does not do.  The essence of the bill is that it creates a rebuttable presumption for essential employees that their contraction of the coronavirus is employment related for workers’ compensation purposes.   The employer can rebut the presumption by a preponderance of the evidence (more than 50%) by showing that the worker was not exposed to the disease while working in the place of employment.  Essential workers are defined as:

  1. Public safety workers or first responders;
  2. Those involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes;
  3. Those who perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home, or;
  4. Anyone deemed an essential employee by the public authority declaring the state of emergency

The effect of a legal presumption is to shift the burden of proof to the employer to disprove the case. Normally the injured worker has the burden of proving his or her case by a preponderance of the evidence.  If a worker contracts COVID-19 and meets one of the categories above, then the workers’ compensation claim will be found to have arisen from work, unless the employer can rebut the claim by showing the worker contracted the disease in a non-work scenario.  Disproving the case may involve proof that the worker more likely contracted the disease from a family member, from an outside gathering, from travel out of state, or perhaps proof that there was no exposure to the coronavirus at work.

Readers need to reflect on what the bill does not do. A presumption of compensability is not a presumption of impairment.  There is no presumption of impairment under the law.  To receive an award of permanent partial disability in New Jersey, one must prove a work-related impairment which restricts the function of the body and causes either a lessening to a material degree of working ability or a substantial impairment of non-work functions.  If one has fully recovered from the illness, proof of impairment will often be very difficult.  Many of the claim petitions that have been filed in New Jersey do not indicate any particular impairment at all, just referring to “residuals of COVID-19.”  Some claim petitions refer to “respiratory illness” without any treatment having occurred by a pulmonologist.

The first issue is therefore whether the illness arose from work.  The presumption helps the injured worker in close cases on the issue of connection to work.  However, the second proof issue will be difficult for many of those who have recovered from the coronavirus, namely proof by objective evidence that the illness has caused a permanent partial or total impairment. That will require good science and good medicine.   The impairment must be a present one, not merely a potential for injury in the future. 

The effective date of the bill is March 9, 2020.  Clients have inquired whether this means that they should reevaluate all the COVID-19 cases that they made decisions on during the past six months.  The bill does not require this, and there is really little to be gained by doing this.  If there is a dispute over workers’ compensation benefits, the injured worker will likely address the issue with the employer or file a claim petition to obtain medical, temporary or permanent partial disability benefits.  Many recovered COVID-19 cases simply do not involve a dispute over workers’ compensation benefits.  Notably, numerous dependency claims have already been filed long before the passage of S2380.  Employers can expect the filing of more COVID-19 cases as a result of the passage of S2380, but the bill does not make it any easier for claimants to prove objective evidence of an impairment that meets the Supreme Court standard set forth in Perez v. Pantasote, 95 N.J. 105 (1984).

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John H. Geaney

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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