NJ assumes workers’ compensation coverage for NJ essential workers who contract COVID-19 | Ballard Spahr LLP
In a long-awaited move, New Jersey has again acted to provide COVID-19-related benefits to workers across the state. The new legislation creates a rebuttable presumption that, in the absence of demonstrable evidence to the contrary, “essential” workers who contract COVID-19 did so on the job and will be entitled to workers’ compensation and benefits for their illness. Signed by Governor Phil Murphy on Monday, September 14, 2020, the law took effect immediately and is retroactive to March 9, the date of the Governor’s initial executive order declaring a state of emergency.
The law is broadly applicable to healthcare workers, public safety workers and other essential employees. “Healthcare workers” include those employed by a “healthcare facility”, which is defined to include a facility providing any type of patient care. Public safety workers include any member, employee or officer of a paid, partially paid or volunteer fire or police department, force, company or district, team of community emergency response, correctional facility, or basic or advanced medical technician of a first aid or rescue team, or any other nurse, basic or advanced medical technician. Other “essential workers” covered by the law are those deemed essential by the governor and those who work in positions that involve physical proximity to members of the public and are essential to health, safety and well-being. public, including transport services, hotel and other residential services, financial services and the production, preparation, storage, sale and distribution of essential goods such as food, drink, medicine, fuel and supplies needed for essential business operations. The presumption that a positive diagnosis of COVID-19 is work-related may be rebutted by a preponderance of evidence showing that the worker was not exposed to COVID-19 while working as part of their job. essential job. The “preponderance of evidence” standard essentially means that an employer must prove “it was more likely than not” that the employee contracted COVID-19 outside of work.
Where such proof cannot be found, the illness is fully compensable for the purposes of Workers’ Compensation, Ordinary and Accidental Disability Retirement and other statutory benefits for persons suffering from injury. or a work-related illness. Employees filing claims under this new legislation must be treated like any other employee claiming such benefits, and employers cannot reduce or limit benefits because an employee is filing a claim under the new legislation.
Companies will note that benefits paid under the new law will not be considered in the employer’s experience rating for workers’ compensation insurance premiums.
It should also be mentioned that the anti-retaliation provisions of the Workers’ Compensation Act will extend their protections to those who claim benefits under this Act.
Finally, as indicated, the new legislation has a retroactive application. Thus, businesses should expect claims to be filed for coverage and benefits for COVID-19 cases that have occurred within the past six months, as well as in the future. Those who used paid time off for COVID-19-related absences during this period may seek to recoup that time and receive workers’ compensation benefits instead. For employees who used emergency paid sick leave under the Family Coronavirus Response Act (FFCRA) for absences related to COVID-19, the FFCRA explains that it does not decrease or reduce other benefits and therefore employees can now seek to cover these absences with workers. compensation and “save” FFCRA leave for another covered reason.
The main lessons of this legislation:
- Employers of essential employees should be prepared for an increase in workers’ compensation claims for illnesses related to COVID-19.
- Such employers should carefully consider whether to challenge such claims on the basis of the rebuttable presumption standard.
- Employers should treat employees who make such claims as they would treat other people who make claims for work-related injuries or illnesses.