New Jersey Law Creates Presumption For Essential Employees That COVID-19 Is Contracted At Work

September 16, 2020

 

On September 14, 2020, Governor Murphy signed S-2380/A-3999 into law, which creates a presumption that “essential employees” who contract the coronavirus disease 2019 (“COVID-19”) is work related unless the employer can demonstrate otherwise. Therefore, for any such employees, COVID-19 is fully compensable for the purpose of workers’ compensation benefits and other employment benefits provided for work-related injuries and illnesses. The law is retroactive to March 9, 2020 and will remain in effect for the duration of the public health emergency caused by the COVID-19 pandemic.

“Essential employees” include any employee in the public or private sector who:

  • are public safety workers or first responders;
  • are 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;
  • perform functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare (e.g., transportation services, sale, and distribution of food, beverages, medicine, fuel, and supplies for conducting essential business); or
  • are any other employees deemed an essential employee by the public authority declaring the state of emergency.

The bill provides that workers’ compensation claims paid as a result of the rebuttable presumption provided by the bill shall 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.

New Jersey employers with more than 10 employees should be aware that COVID-19 is reportable to the Occupational Safety and Health Administration (“OSHA”) if it is a lab confirmed case and deemed work related. This would include inclusion in OSHA Form 300 logs. Recent OSHA investigations are focusing on such forms and submissions. By creating the rebuttable presumption, this bill may remove some of the discretion employers have to make a determination regarding the source of the illness. Employers should seek legal advice if they have any questions regarding how to properly comply with both New Jersey law and OSHA Form 300 reporting requirements.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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