August 11, 2020

Volume X, Number 224

August 11, 2020

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August 10, 2020

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Workers’ Compensation During COVID-19

During these trying times of the COVID-19 pandemic, most Americans are doing all they can to stay healthy and “flatten the curve” in order to return to their normal lives. Many worry about their own well-being, along with their family’s, – both physically and financially, as scores of people have been laid off, been told to stay home from work because they are immune-compromised, and/or have been diagnosed as having Coronavirus (COVID-19). What rights does an individual have when they have been diagnosed with Coronavirus, and they believe they contracted it in a way that is related to their employment?

In New Jersey, work related accidents are governed by the New Jersey Workers’ Compensation Act (NJ.S.A. 34:15-1 et seq.). When the alleged injury is an occupational exposure to something like the Coronavirus, an injured worker is entitled to compensation if they can establish that their disease arose out of and in the course of employment, and the condition is characteristic to their particular trade, occupation, process or place of employment. (NJSA 34:15-31)

During this health crisis, when the concern is a quick-spreading, airborne transmitted virus, it would be extremely difficult for many infected workers to conclusively establish how and/or where they were exposed, and as such, they may be disqualified from workers’ compensation benefits.

However, certain employees such as public safety workers, enjoy a presumption that if they contract a serious communicable disease or related illness, like the Coronavirus, while responding to an event such as this pandemic, their illness is related to their employment. Therefore, they are entitled to workers’ compensation benefits. (NJSA 34:15-31.5) Public safety workers include members/employees/officers of a paid or volunteer fire or police department, correctional facility, EMTs, nurses, and advanced medical technicians. (NJSA 34:15-31.4)

But what happens to those injured who are not “public safety workers?” Thousands of New Jersey’s citizens have been deemed “essential” workers under Governor Murphy’s recent Executive Orders. These include individuals who work in restaurants, grocery stores, pharmacies, gas stations, and banks. What protections do these individuals have if they should contract the Coronavirus?

At the present time, unlike public safety workers, there is no presumption of compensability. These “essential” workers would likely have a very difficult time under the current law to successfully establish the connection between their employment and their illness. As such, they may need to seek out other benefits available to them under New Jersey law such as unemployment, earned sick leave, family leave, and/or temporary disability insurance. There may also be additional benefits available under newly passed Federal laws including the CARES Act and the Families First Coronavirus Response Act.

There is some hope though, New Jersey Senate President Stephen Sweeney has indicated that he will introduce new legislation, which would purportedly provide a presumption of compensability for these “essential” workers should they get sick. Therefore, if an essential worker who interacts with the public contracts Coronavirus, it would be presumed that they caught the virus at work, thereby making them eligible to receive to workers’ compensation benefits. This law is anticipated to be retroactive to March 9, 2020. We will continue to monitor the status of this proposed new legislation and provide updates.

In the interim, additional information about the range of benefits available at this time related to the Coronavirus can be found on the New Jersey Division of Labor and Workforce Development’s website as well as this link.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume X, Number 107

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About this Author

Brian Shea Litigation Attorney Stark & Stark Law Firm
Shareholder

Brian W. Shea is a Shareholder and member of Stark and Stark’s Workers’ Compensation Group where he represents injured workers in claims for workers’ compensation benefits.

Mr. Shea brings extensive knowledge of workers’ compensation claims handling to the office as a result of years representing injured workers, having been Senior Counsel for the State of New Jersey’s Uninsured Employer’s Fund and an attorney for an insurance defense firm representing self-insured employers, insurance carriers and...

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