By: Samantha E. Hahn, Esq. [1]
Despite the recent surge in COVID-19 cases caused by the Delta and Omicron variants, the handling of COVID-19 workers’ compensation claims throughout New Jersey has changed significantly since the onset of the pandemic. In 2020, the State responded to the coronavirus threat by declaring a “Public Health Emergency” on March 9th and shutting down all non-essential businesses. Nonetheless, essential employees continued to work. To provide a safety net for those individuals, Governor Phil Murphy signed Bill S2389 into law. The law creates a rebuttable presumption that COVID-19 infections contracted by essential employees during the “Public Health Emergency” are work related. The law’s definition of essential employee is very broad and encompasses far more than healthcare workers and first responders. To soften the blow to employers, claims paid in accordance with the law cannot be considered when calculating the employer’s experience modification rating. The Governor formally ended the “Public Health Emergency” declaration on June 4, 2021, and with it, the COVID-19 rebuttable presumption for essential workers.
As we enter 2022, COVID-19 claims are going to be handled differently based upon the employee’s occupation and date of exposure. New claims filed by employees who were exposed to the coronavirus between March 9, 2020 and June 4, 2021 may still be entitled to the Public Health Emergency presumption if the worker was an essential employee at the time of the exposure. Employees who plead an exposure after June 4, 2021 will have to prove that they were exposed to, and contracted, COVID-19 during the course and scope of their employment. This is an extremely difficult burden given the pervasiveness of the virus throughout the State. First responders are provided increased protections regardless of when they were exposed. Under the 2019 Canzanella Act, a presumption of causality exists for public safety workers infected with COVID-19; however, an employer can rebut the claim by providing evidence that it was “more probable than not” that the employee’s exposure occurred outside of the workplace.
Lastly, employers and their carriers should be aware of the 2021 Supplemental Benefit Law. The law provides additional weekly benefits paid by the New Jersey Second Injury Fund to dependents of essential employees who have passed away from workplace COVID-19 exposures. Benefits are only payable when there is a formal Court Order; therefore, employers and carriers should expect to see claim petitions filed even in cases in which dependency benefits have already been voluntarily tendered. Significantly, the Second Injury Fund must be notified by the insurance company, or the self-insured employer, that supplemental benefits are due no later than sixty days from the date of the dependency award. If notice is not provided, the employer may be responsible for payment of the supplemental benefits until notice is properly provided.
Unfortunately, navigating coronavirus exposures in New Jersey workers’ compensation is not only limited to the COVID-19 claims. Petitioners are frequently delaying treatment or missing exams entirely due to COVID-19 diagnoses or only suspected symptoms. Information requests to Social Security and Medicare have been exceptionally backlogged since the shutdowns and are protracting discovery. Should you have any questions or concerns about COVID-19 claim handling, or how COVID-19 is impacting a traumatic injury claim, please click here to contact a member of the Firm’s Workers’ Compensation Department.
[1] 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.
