COVID-19: Workers' Compensation Update

COVID-19: Workers' Compensation Update
A bill was introduced by Senator Stephen M. Sweeney on May 4, 2020 that would create a presumption that COVID-19 infections contracted by essential employees (including but not limited to, health care workers and public safety workers) are work-related for the purpose of employment benefits provided for work-related injuries and illnesses. Moreover, this bill would also prohibit an employer from charging an employee with any paid leave for an absence due to exposure to COVID-19.
 
Under the New Jersey Workers’ Compensation Act (“Act”), N.J.S.A 34:15-31, a disease is compensable if it is “..... arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process, or place of employment.” Very simply, if one were to contract a disease at work, it would be compensable under the Act.
 
The Act does require an employee exposed to a disease at work to affirmatively make an employer aware of this exposure. Pursuant to N.J.S.A 34:15-31, unless the employer [has] actual knowledge that the employee has contracted a compensable occupational disease . . . notice to be effective must be given within a period of five months after the date when the employee shall have ceased to be subject to exposure to the occupational disease, or within ninety days after the employee knew or ought to have known the nature of his disability and its relation to his employment, whichever period is later in duration.
 
It is an employee’s burden to prove that he or she contracted a disease while working on the job. This is a very factually intensive inquiry, requiring an employee to prove that the specific conditions of the job did indeed cause the employee’s condition. In many instances, this link can be difficult to make in many occupational disease claims. However, in light of the COVID-19 pandemic, it is clear that the legislation being introduced by Senator Sweeney serves to shift this burden of proving causation in favor of essential employees such as health care workers and public safety workers who are more likely exposed to COVID-19 by virtue of their job.
 
Although this legislation does indeed make it easier for workers who are on the front lines of the pandemic to prove the causal relationship between the disease and the job, this legislation does not change the notice requirements set forth by N.J.S.A 34:15-31. As such, if an essential employee does contract COVID-19 and works at a job where there is a likelihood that this infection was contracted at the job, there is still the requirement to notify the employer within the prescribed times set forth in the statute. Very simply, the notice requirement continues to be squarely the burden of the employee and it cannot be assumed that an employer knew of the disease.
 
The front line essential workers have truly become the heroes in the battle against COVID-19. As such, we anticipate that this legislation will indeed be pushed through and become law. However, there is always the possibility that various changes will be adopted along the way. We will keep you updated with how this bill progresses.
 
If you any questions about the compensability of COVID-19 in respect to workers’ compensation benefits, please reach out to the Workers' Compensation Practice Group at 973-729-1880 or via email to, Jonathan E. McMeen Esq at jmcmeen@lcrlaw.com.
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