By: Lía Fiol-Matta, Esq. Ty Hyderally, Esq.

On July 27, 2020, the New Jersey Senate sent to the Assembly Appropriations Committee Senate Bill No. 2380, which concerns employment benefits and coronavirus infections contracted by essential employees. The bill is scheduled for a vote on July 30, 2020 in the Assembly.  As is well known, certain categories of employees in various industries have been considered “essential” during these trying times of the 2020 pandemic caused by COVID-19.

Senate Bill S2380, authored by Senators Stephen M. Sweeney, Robert Singer and Linda Greenstein, originally introduced on May 4, 2020, seeks to amend the New Jersey Workers’ Compensation statute, N.J.S.A. 34:15-1et seq, by creating a presumption of compensability for essential employees who contract COVID-19.  “The men and women who are on the front lines protecting our health and safety and providing the vital services we all need during this crisis must be assured that they have basic worker protections and that they can get workers’ compensation if they fall ill to the coronavirus,” said Senator Sweeney (D-Gloucester/Salem/Cumberland). “We need to ensure that they can go to work with the knowledge that these benefits will be there if they need them.”

The bill defines “essential employee” as “an employee in the public or private sector who, during a state of emergency:

1. is a public safety worker or first responder, including any fire, police or other emergency responders;
2. is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes;
3. performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and work at home; or
4. is any other employee deemed an essential employee by the public authority declaring the state of emergency.”

S2380 creates a presumption that the condition of COVID-19 contracted by public safety workers, health care workers, and other essential employees, is work-related and fully compensable for the purpose of workers’ compensation benefits and other employment benefits provided for work-related injuries and illnesses.

The presumption is defined as a “prima facie presumption,” meaning that if the employee meets the criteria of being an “essential employee,” and that person contracts COVID-19 during the period of the pandemic, the illness would presumptively be considered as a compensable work-related illness. The employee would be entitled to all the benefits of workers’ compensation, that is, medical care, temporary disability benefits, and potentially permanent disability benefits. The legislation would allow the employer to rebut the presumption of compensability by the legal standard known as a “preponderance of the evidence,” if the employer can demonstrate that the worker was not exposed to the disease in the workplace or the employee contracted the virus outside of the workplace.

The bill provides that workers’ compensation claims paid as a result of the rebuttable presumption provided by the bill shall not to be considered in calculating an employer’s “experience modifier rate” (an adjustment of an employer’s premium for workers’ compensation coverage based on the losses the insurer has experienced from that employer) or affect an employer’s insurance premium rate for the employer’s workers’ compensation policy.

The legislation applies to those covered employees who contract the disease during the public health emergency and will take place immediately. It is retroactive to March 9, 2020, the date of Governor Murphy’s declaration of state of emergency with respect to the coronavirus pandemic, Executive Order 103.

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