Essential Workers and Workers’ Compensation for Contracting COVID-19

Typically, to receive workers’ compensation in New Jersey, an employee must prove they suffered a job-related illness or injury.

Essential Workers and Workers’ Compensation for Contracting COVID-19A recent law creates a presumption during the ongoing public health crisis that essential employees’ illnesses are related to their work. New Jersey Governor Phil Murphy signed Senate Bill (SB) 2380 into law. SB 2380 creates a rebuttable presumption of workers’ compensation coverage for COVID-19 cases contracted by “essential employees” during a public health emergency declared by the executive order of the governor. The law is effective immediately and retroactive to March 9, 2020.

The law defines an essential employee as an employee in public or private sector who during a state of emergency

Public Safety Worker or First Responder

  • including any fire, police, or other emergency responders

Providing Care Related Services

  • medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities, or homes

Essential Roles in Close Proximity to the Public

  • performs functions that 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

Deemed Essential Employee by Public Authority

  • Any other employee deemed an essential employee by the public authority declaring the state of emergencies such as grocery store workers, pharmacy employees, medical supply stores, gas station attendants, convenience store employees, cashiers and store clerks, childcare employees, or construction workers.

What Does the Law Say?

Under the law, in a public health emergency declared by the governor, if an individual contract COVID-19 during a time in which the individual is working as an essential employee in a place of employment other than the individual’s own residence, there will be a rebuttable presumption that the contraction of the disease is work-related and fully compensable for workers’ compensation benefits.  A rebuttable presumption is an assumption made by a court taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty. A rebuttable presumption is often associated with prima facie evidence.

An employer may rebut this presumption by a preponderance of the evidence showing that the worker was not exposed to the disease while working in a place of employment other than the individual’s own residence.

Establishing a presumption of compensability for certain essential workers during the pandemic has become a growing trend among states that significantly lessens an employee’s burden of proving that a COVID-19–related illness is compensable under workers’ compensation laws. Details of these state law amendments vary. In states that have implemented a rebuttable presumption, such as New Jersey, employers will face the difficult burden of proving that an alleged COVID-19 contraction is not work-related. However, while employers in these states may be faced with an uptick in workers’ compensation claims, employers will also likely be insulated from civil liability pursuant to the workers’ compensation bar, absent some exceptions to the bar, such as the intentional injury exception.

How Will This Impact Employers?

Contact Trenton NJ Workers Compensation Lawyers TodayThis law will encourage the filing of workers’ compensation claims for COVID-19 infections. It makes defending an occupational infection case much harder for employers. This law provides that losses associated with workers’ compensation claims are not be included in calculating an employer’s Experience Modifier Rate or otherwise affect an employer’s insurance premium rate for the employer’s workers’ compensation policy. This would provide some protection to employers against any increased premiums.

It is not new for New Jersey to take such proactive measures to protect its public safety employees. New Jersey was at the forefront in creating protection for first responders, including first aid and rescue squad members, police, correction officers, nurses, medical technicians, and other medical personnel with the Canzanella Act‘s passage in July 2019, which created a rebuttable presumption of workers’ compensation coverage for those who can establish evidence of exposures to communicable diseases in the workplace. This Act was already being applied to the COVID-19 pandemic. However, this latest presumption greatly expands the definition of “essential employees” to many individuals working in the private sector.

Contact Trenton NJ Workers Compensation Lawyers Today

Our team’s skill, and dedication to your family, can make all the difference in securing compensation for the unwarranted loss of your loved one in  Trenton, Princeton, Hamilton, and the greater Mercer County area.

It is good to know that protection for essential workers and compensation is available if needed.  If you have a workers’ compensation case, feel free to contact The Law Office of Kamensky, Cohen & Riechelson online or through our Trenton office at 609.528.2596. We look forward to working with you.

 

New Jersey Workers’ Compensation Covers Covid-19 for Essential Employees

In a move that distinguished New Jersey from many other states, Governor Phil Murphy signed Senate Bill 2380 into law on September 14, 2020, providing workers’ compensation coverage to essential workers.

New Jersey Workers’ Compensation Covers Covid-19 for Essential EmployeesThis law is a rebuttable presumption, meaning that the court assumes that workers’ compensation benefits extend to essential employees until the decision is contested and proven otherwise. This law took effect upon its signing on September 14 and was retroactively applied to March 9, 2020, when Governor Murphy first declared a state of emergency.

Under the law, an essential employee is defined as “an employee in 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 that 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?”

Emergency Employees outside of Medical and Healthcare Providers

The bill distinguishes that any employee who is given the option to work from home during a state of emergency is not considered an essential employee. The line blurs in considering what an essential employee, if not someone working from home, is. For this reason, the fourth component of the definition of an essential employee is broad. In this case, the “public authority declaring the state of emergency” is Governor Murphy. Any directives he gives that specifically name members of the community as essential employees not subject to quarantining protocol, for example, are to be upheld by this law. Some examples of employees that may be considered emergency employees and fall outside of the realm of medical and healthcare providers, which are traditionally seen as essential employees, are

  • employees of pharmacies
  • grocery store employees
  • childcare providers to essential employees
  • gas station employees
  • select market cashiers
  • construction workers

What kind of coverage is afforded to Essential Employees?

With the definition of essential employee established, the consideration shifts to what kind of coverage is afforded if an essential employee contracts Covid-19. Under SB2380, if essential employee contracts Covid-19 while working outside of their own home, they are eligible to receive full workers’ compensation benefits for their medical treatment and lost pay.

This law is a rebuttable presumption that means that an employer can argue that the employee was not at risk of contracting the virus during working hours. This can be shown by providing evidence of safety measures and hygiene protocols limiting contact with others. In some cases, it can also be shown by proving that the employee was unsafely in close contact with others outside of work.

Contact Our Mercer County Workers Compensation Attorneys Today

Experience Modification Factor

Fortunately for employers, workers’ compensation claims related to this rebuttable presumption providing coverage for Covid-19 illness are not calculated towards the company’s Experience Modification Factor. The Experience Modification Factor is a company’s safety rating determining what their workers’ compensation premium will be. A company whose safety protocols and systems lead to fewer injuries and workers’ compensation claims receive a lower Experience Modification Factor. Those that have a higher percentage of workers’ compensation claims have a higher Experience Modification Factor. If a company’s workers’ compensation claims are amplified due to Covid-19 cases on the workforce, their safety score and insurance premium rate will not be adversely affected.

The rise in claims due to COVID requires patience from employees

Because the bill’s signing into law took retroactive effect beginning when the initial state of emergency was called in March, employers expected the rise in workers’ compensation claims filed during that time. They were advised to handle new Covid-19-related claims as they would other claims. The backlog in addressing the claims has proven problematic for many companies who have already seen a workforce decrease due to sickness. Employers are advised to await results while maintaining awareness of the timeframe passed patiently.

Contact Our Mercer County Workers Compensation Attorneys Today

If you consider you have a claim and reside in Mercer County, Trenton, Princeton, and Hamilton, please contact us online or through our Trenton, NJ office (609) 528-2596 a free and confidential consultation regarding your case options for recovering compensation.

Decline in Traffic Fatalities During Covid-19 Pandemic

According to a CBS This Morning report, more than 20 states saw a marked drop in fatalities caused by car accidents between March and May

Decline in Traffic Fatalities During Covid-19 PandemicThe Covid-19 pandemic that has wrought havoc on the entire planet has adversely impacted nearly every aspect of our lives. Our physical, emotional, social, and financial lives have been put in jeopardy; and we have had to orient ourselves to new systems of operation. While the lockdowns caused by the pandemic have had many difficult effects on our lives, one positive thing has come out of the removal of cars from the road: there has been a drastic decline in traffic-related automobile accidents causing fatalities across the country.

According to a CBS This Morning report, more than 20 states saw a marked drop in fatalities caused by car accidents between March and May, during which many states and local governments were implementing stay-at-home orders. Most notable among the statistics of declining fatalities gathered by the CBS This Morning report was an 84 percent decline in fatalities on highways in California. Because that state, in particular, drove home a message that it was imperative not to drive unless absolutely necessary in order to provide space on the roads for emergency responders to field calls related to the Coronavirus, traffic was greatly reduced, and fatal accidents fell with them.

What About New Jersey Traffic Accident and Fatality Statistics?

New Jersey also has seen a serious drop in reported auto fatalities during this trying time, reportedly reaching 50-year lows. This pattern in New Jersey and the country is welcome news, but it is a stark turnaround from before the pandemic. According to the New Jersey State Police, traffic fatality patterns had been steady for years. The National Highway Traffic Safety Administration reported that 96 percent of the vehicles involved in US traffic accidents in 2014 were passenger vehicles, and in 2014 over 21,000 people died across the country in traffic accidents involving passenger vehicles. Additionally, that year, a startling 2.07 million people were injured in passenger vehicle accidents. Given that accident fatality numbers have stayed fairly steady – as in high – over the past 5 years before the pandemic (seeing a drop of only 3 percent from 2015-2018 data), we are left to wonder whether patterns will simply return to the dangerous ‘normal’ after the pandemic has subsided.

Counties like Bergen, Middlesex, and Essex have historically been the counties with the most traffic accidents; can the 35 percent decline of traffic fatalities reported in April 2020 when compared to April 2019 be maintained in high accident areas, and all areas around New Jersey?

Not necessarily at all, warns the New Jersey State Police. In fact, while NJSP records show that the rate of fatalities from auto accidents has declined by 9 percent overall compared to 2019, this drop is not as sharp as it could be. Traffic in New Jersey has decreased by 62 percent during the first months of the pandemic, so a 9 percent decrease in fatalities actually shows that some drivers are taking advantage of the emptier roads to engage in risky behaviors such as speeding that have resulted in additional traffic deaths.

Increase in risky behavior on roadways can prove dangerous during Covid-19

What is the People´s Perspective When it comes to COVID-19 and Law Enforcement?New Jersey Governors Highway Safety Association Senior Director Pam Shadel Fischer added another dangerous cause of accidents. She said, “There is a sense that because of Covid-19, law enforcement is diverted.” This perspective that risky behavior would go unchecked on ‘empty’ roads is dangerous and life-threatening, both for drivers engaging in risky behaviors as well as everyone else on the road, whether in a car or not.

Reminder to Drivers Getting Back on the Road Post Pandemic

As drivers get back on the road, New Jersey drivers are reminded to engage in basic safety precautions to make sure that you, your passengers, and others on the road stay safe. Make sure you have completed safety checks for your car, especially if you haven’t driven it in a while. Always wear your seatbelt and ensure that all passengers are also strapped in. Never drive under the influence of alcohol or mind-altering drugs. Obey all street signs, and follow the local speed limits, even if you seem to be alone on the road. Sometimes the most dangerous times operating a vehicle are those in which you let your guard down because you perceive that you have more room to roam than you actually do. Remember that at any moment, a car, motorcyclist, bicyclist, or pedestrian could enter into your trajectory from an unseen path, and driving defensively while following all traffic laws is the surest way to keep everyone safe on the road.

Contact Trenton NJ Fatal Auto Accident and Injury Lawyers Today

At The Law Office of Kamensky, Cohen & Riechelson, our experienced team of auto accident lawyers supports clients across Trenton, Princeton, Hamilton, and the greater Mercer County area in all matters regarding car accidents and personal injury claims.

To schedule a consultation with a member of our team today to discuss your accident, please contact us online, or through our Trenton office at 609.528.2596. We look forward to working with you.