By: Samantha E. Hahn, Esq.
On September 14, 2020, New Jersey Governor Phil Murphy signed Bill S2389, which creates a rebuttable presumption that COVID-19 infections contracted by essential employees during the New Jersey Public Health Emergency are work related. Bill S2380 was first introduced to the NJ State Senate by Senator Stephen Sweeney on May 4, 2020, and it was passed by the legislature on July 30, 2020.
Bill S2380 is a significant departure from the current New Jersey Law. Traditional occupational disease claims are only compensable when the employee can demonstrate that their disease arose out of, and was peculiar to, their particular employment. Public service employees enjoy greater protections. Under the New Jersey 2019 Canzanella Act, a presumption of compensability would already exist for public safety workers infected with COVID-19; however, an employer could rebut the claim by providing evidence that it was “more probable than not” that the employee’s exposure occurred outside of the workplace. Like the Canzanella Act, Bill 2380 will not require employees to prove that they contracted COVID-19 at work. Instead, an essential employee who contracts COVID-19 during the “public health emergency” will be presumed to have contracted the disease at work. This presumption can only be rebutted by a preponderance of the evidence showing that the employee was not exposed to the disease at work. Given the multitude of people who currently have COVID-19, but are asymptomatic, this is a very difficult burden to overcome.
The rebuttable presumption only applies to essential employees; however, the Bill’s definition of essential employee is very broad. The phrase “essential employee” includes public safety officers; first responders; healthcare workers (including emergency transportation and social services); and anyone who performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare. This includes anyone who provides transportation services; hotel and residential services; financial services; and those involved in the production, preparation, sale and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home. The only exclusion is for State Employees who were given the option of working from home but refused.
The Bill will go into immediate effect, and it is retroactive to March 9, 2020, the date the Governor first declared a public health emergency. Notably, claims paid in accordance with this Act will not be considered when calculating the employer’s experience modification rating and resultantly will not impact premiums. Furthermore, Bill S2380’s presumption is not a permanent change to the New Jersey Workers’ Compensation Act. Once the public health emergency designation lapses, so does the COVID-19 presumption. Employees who contract COVID-19 after that time will have their cases adjudicated in accordance with the previously existing laws.
As discussed in our prior updates, the bill will create a financial burden for Workers’ Compensation Carriers insuring government workers, healthcare facilities, food services, and other industries involved in the production, preparation, sale and distribution of essential goods. We also expect it will increase the number of COVID-19 related filings throughout the State. Despite the rebuttable presumption of causality, Defense Counsel will still be able to dispute and litigate any entitlement to permanent disability.
Click here for a full copy of Bill S2380.
Should you have any question or concerns, please click here to contact a member of the Firm’s Workers’ Compensation Department.
 Samantha E. Hahn, Esq. is a Shareholder in GRSLBG&B’s Workers’ Compensation Department. She defends employers, insurers, and third party administrators against workers’ compensation claims in New Jersey and Pennsylvania. Samantha can be reached at SHahn@grsl.com.