New Jersey State Senate President Stephen Sweeney has sponsored new legislation to create a rebuttable presumption that all COVID-19 infections contracted by essential employees during the New Jersey State of Emergency are work related. The current draft of proposed Bill S2380 defines essential employees as including, but not limited to, public safety workers, healthcare workers and employees whose duties are considered essential to the public’s health, safety, and welfare. The presumption may only be rebutted by clear and convincing evidence that the employee was not exposed to the disease at work. The legislation will take immediate effect and is retroactive to March 9, 2020
The proposed bill is a far 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. Proposed Bill S230 does not require the employee to prove any connection between his illness and his employment. Furthermore, the Bill would require an employer to clearly and convincingly prove that the exposure did not occur at work. Given the multitude of people who currently have COVID-19 but are asymptomatic, this is an impossibly high burden.
Should Bill S2380 become law, it would create a huge financial burden on Workers’ Compensation carriers insuring government workers and healthcare facilities. It would also impact business owners. The Bill mandates that all essential employees who are incapacitated or unable to perform their job duties as a result of being exposed to, or contracting, COVID-19 be considered on emergency hazard health duty. Employers cannot require these employees to use paid leave or any other contractual time off to cover this period of incapacity.
A copy of proposed Bill S2380 can be viewed here.
Should you have any question or concerns, please click here to contact a member of the Firm’s Workers’ Compensation Department.