Recent Changes In Essential Employees Due to COVID

How Can the Recent Changes In Essential Employees Worker’s Compensation and COVID Affect Me?

NJ Governor Phil Murphy recently signed legislation enacting sweeping measures to provide workers’ compensation benefits to essential workers who contract coronavirus [COVID-19] and provides dependency benefits to their survivors.

The legislation eases the burden of proof by establishing a rebuttable presumption that coronavirus disease contracted by health care workers, public safety workers, and other essential employees is work-related and compensable under the NJ Workers’ Compensation Act. The law (A3999) makes it easier for employees on the coronavirus’s front line to fight to get work-related benefits. NJ has been an epicenter of the COVID-19 crisis and suffered some of the highest COVID illness and death incidents in the US. Leadership has expressed a sincere desire to support its essential workers wholeheartedly.

How Is This New Legislation Beneficial?

The law provides that if an “essential employee” working outside the home contracts SARS-CoV-2, the virus that causes the COVID-19 disease, s/he is entitled to a prima facie presumption (i.e., correct unless proven otherwise) that the illness was work-related and is thus fully compensable under the employer’s workers’ compensation policy. This powerful presumption, which was hotly contested by many industries, is not without limitation. Employers may attempt to disprove an employee’s case under a preponderance of evidence by establishing that the employee was not exposed to the virus at work.

The law was enacted directly to the perceived heightened risk that essential workers face while working at their places of employment during the ongoing public health emergency. Importantly, the law applies retroactively to March 9, 2020, the date Governor Murphy first declared a state of emergency based on the coronavirus outbreak in New Jersey.

Who is Included in the Definition of an “Essential Employee”?

1. The first group includes public safety workers or first responders, such as fire, police, or other emergency responders.

2. The second group includes those who provide 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. The third grouping includes a vast array of workers who interact directly in close “physical proximity” with members of the public and are considered 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.

4. Finally, the fourth group includes any other employee deemed an essential employee by the public authority declaring the emergency state.

The legislation also states that the statute does not cover the government or other public agencies who are afforded the ability to work from home but still elect to work at their place of employment.  On the other hand, workers on flex time who share their work schedule between home and the office are included.

What if my employer disputes my claim?

Employers carry the burden of proof in demonstrating how the employee could not have gotten sick while at work. This is called a rebuttal presumption and is a legal inference or assumption that a fact exists because of the known or proven existence of some other fact or group of facts. If a party is entitled to a presumption, the burden of production or persuasion shifts to the opposing party, who may attempt to “rebut” or overcome the presumption. One of the most well-known rebuttable presumptions is in the criminal context, where a defendant is presumed innocent until proven guilty. Once the employee shows that he or she meets the requirement, the presumption applies, and the burden of proof shifts to the employer to disprove the employee’s case.

How can an employer rebut the presumption?

When faced with an essential employee who has contracted COVID-19, the employer can rebut the presumption upon demonstration by “a preponderance of the evidence” (i.e., greater than a 50% chance) that the worker was not exposed to the virus during the course and scope of employment. To do so, the employer will need to offer evidence that the employee contracted COVID-19 from an outside source such as a hospital or other medical facility, a family member or personal contact who tested positive, from attendance at a large gathering where other cases emerged or out-of-state travel to known hotspots, and/or other demonstrable proof that there was no exposure to the virus at the place of employment. It is vital to note that rebutting this presumption necessarily implicates a host of privacy-related issues, including probable dependence on typically confidential health information.

If the employer produces such evidence showing that the employee more likely than not contracted the virus outside the employment scope, he or she is not entitled to the presumption under the law. If the employer cannot overcome the presumption, the employee is entitled to claim workers’ compensation benefits. Such benefits generally include medical care, temporary disability benefits, permanent disability benefits, and dependency benefits for an essential worker who died from contracting COVID-19.

How Can We Help You?

If you need help with your worker’s compensation claim, we are here to help you.  The lawyers at Chamlin, Uliano & Walsh are here to help you with all your workers’ compensation needs.  We have extensive experience handling workers’ compensation issues and understand the challenges you face. We will stay in constant communication with you, keeping you informed about the progression of your case.  Call us at (732) 440-3950 or contact us through our online form.