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.

Impact of COVID-19 on NJ Workplaces – Employment Attorneys Needed

We are not where we envisioned ourselves months ago.  COVID-19 continues to affect our lives and workplaces.

The “new normal” is still foreign to us all, while hopes for widespread vaccination have begun to provide some respite from the lockdowns, quarantines, and closed businesses.

What has changed legislatively?

New Jersey and New York Workplaces and COVID-19  The U.S. House of Representatives passed the Families First Coronavirus Act (H.R. 6201) (the “Act”) on March 14, 2020. The Act amends the Family and Medical Leave Act (“FMLA”) and provides additional reasons for leave as well as mandated pay. Under the FMLA, for employees who were employed with the employer the previous 12 months and worked a minimum of 1,250 hours during said 12 months, such employees were able to take up to twelve weeks of unpaid leave for serious health issues or care for a newborn while, at the same time, maintain the comfort of job protection. The FMLA only applied to employers with 50 or more employees and unfortunately expired on December 30, 2020.  Employees are now instructed to negotiate to leave with their employers to care for dependents who do not attend school or other programs as vaccine access has opened.

What can employers do to ensure employee safety and health?

An employer may take the following steps to ensure the safety of its employees:

  • If an employee has been absent from work, an employer may ask if it was due to a medical reason. (An employer is always entitled to know why an employee has not reported to work, but not the specific medical condition).
  • Require employees who have been absent to provide a doctor’s note certifying they are fit to return to work.
  • Insist on face masks, hand washing, and social distancing to prevent the spread of COVID in work and rest areas are required to protect employees, customers, and others who come into physical contact with its operations from the spread of COVID-19. The requirements address such measures as social distancing, wearing face masks, health checks, and cleaning and disinfecting high touch areas.

What should an employer do if a worker appears ill?

If any employee presents themselves at work with a fever or difficulty breathing, they should seek medical evaluation. While these symptoms are not always associated with influenza and the likelihood of an employee having the COVID-19 coronavirus is extremely low, it pays to err on the side of caution. Supervisors should be retrained on the importance of not overreacting to workplace situations potentially related to COVID-19 to prevent panic among the workforce.

Can an employee refuse to come to work because of fear of infection?

The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold.  However, most work conditions in the United States do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

What if an employee tests positive for COVID-19?

Contact Our Mercer County Personal Injury Attorneys TodayThe infected employee should be sent home until released by their medical provider or local health provider. All employees who worked closely with that employee should be sent home to ensure the infection does not spread. Before the infected employee departs, ask them to identify all individuals who worked nearby (within six feet) for a prolonged period of time (10 minutes or more to 30 minutes or more) with them during the 48-hour period before the onset of symptoms to ensure you have a full list of those who should be sent home.

Those employees should first consult and follow their healthcare providers or public health department’s advice regarding the length of time to stay at home. The CDC recommends that those who have had close contact for a prolonged period of time with an infected person should remain at home for 14 days after the last exposure. If they develop symptoms, they should remain home for at least seven days from the initial onset of the symptoms, three days without a fever (achieved without medication), and improvement in respiratory symptoms (e.g., cough, shortness of breath).

Contact Our Mercer County Personal Injury Attorneys Today

At The Law Office of Kamensky, Cohen & Riechelson, we have extensive experience helping clients across Mercer County, Trenton, Princeton, and Hamilton recover the compensation they need and deserve for their injuries. We work closely with investigative and medical experts to help prove your claim and provide honest, intelligent, and diligent service to all of our clients.

If you need help dealing with your employer and any facet of this challenging time, call or contact us.  At The Law Office of Kamensky, Cohen & Riechelson, our experienced attorneys are ready to help resolve any conflict you have with your employer.  Call us at  (609) 528-2596.

Should I File a Personal Injury Claim or a Workers’ Compensation Claim?

Personal injury claims and workers’ compensation claims attorneys with offices in East Brunswick and Trenton NJ

Should I File a Personal Injury Claim or a Workers' Compensation Claim?At Kamensky Cohen & Riechelson, we have successfully helped many clients to pursue both personal injury claims as well as workers’ compensation claims in Trenton, Princeton, Hamilton, and the greater Mercer County area.

It is important for our clients to understand both the similarities and differences between personal injury claims and workers’ compensation claims, as they are pursued in very different manners, and have very different compensation structures. Let’s take a closer look.

What Qualifies as a Mercer County Personal Injury Claim?

The biggest difference between personal injury claims and workers’ compensation claims is what circumstances qualify for either claim. That is to say, in any personal injury case like a car accident, construction accident, a slip and fall, or a truck accident for examples, the plaintiff (you) and their Mercer County personal injury attorney need to prove that another party’s reckless or negligent actions were responsible for your injuries. Just because you were injured in a car accident doesn’t necessarily mean you have a personal injury case, you need to prove that the other driver(s) hold the majority of fault for your accident.

What Qualifies as a Mercer County Workers’ Compensation Claim?

On the other hand, in order to file and receive compensation in a workers’ compensation claim, you do not need to prove fault of any kind. In fact, even if your actions directly lead to your injuries, as long as you were performing work-related duties, you and your Trenton workers’ compensation lawyer can file for a Mercer County workers’ compensation claim.

The Difference in Compensation for Personal Injury and Workers’ Compensation Claims

Besides the requirements for proving fault (or in the case of workers’ compensation not needing to prove any fault), workers’ compensation awards and personal injury awards have one major difference. In both cases, you can receive monetary compensation for any medical expenses associated with your injuries, as well as lost wages or future income. The major difference in terms of compensation for a workers’ comp case and a personal injury case is compensation for pain and suffering. Pain and suffering generally make up the largest portion of personal injury recovery, but cannot be recovered in the case of a workers’ compensation claim.

The other major difference is the time and effort involved with both. Personal injury claims can often take more than a year to negotiate and eventually resolve, while with the help of an experienced Trenton workers’ compensation attorney, you can usually resolve your workers’ compensation case in a matter of months.

Should I file for Personal Injury or Workers Compensation? Mercer County Attorney Discusses

There is no easy answer to this question. Each case is unique, with many different factors to consider. Can you prove fault? Can you afford to wait the time it will take to resolve a personal injury claim, or is the time worth the potential recovery of pain and suffering damages?

There are many different factors to consider, and your best option is to speak with an experienced Mercer County injury attorney who can discuss your options, likely outcomes, and advise you which course of action may be favorable in your case.

Contact a Princeton Personal Injury and Workers’ Compensation Attorney Today

Whether you ultimately decide to pursue a personal injury or workers’ compensation claim, it is extremely important that you retain experienced legal counsel in order to help you navigate the process, protect your rights, and help you secure the best possible resolution for your case.

The Trenton Law Office of Kamensky Cohen & Riechelson has been defending personal injury and workers’ compensation clients since 1972. We have a proven track record of success when it comes to giving honest and professional legal advice, and securing the compensation that our clients need and deserve.

To speak with one of our attorneys today in a free and confidential consultation regarding either a personal injury claim or a workers’ compensation claim, please contact us online or through our Trenton office at 609.528.2596.

Workers’ Compensation in the “Gig” Economy: Contractors Left Without Protection

Workers Compensation Attorneys Serving Clients in the “Gig” Economy in Princeton, Ewing, Hamilton, Pennington and across Mercer County, NJ

The prevalence of companies contracting with individuals while not classifying them as employees is on the rise as the “gig” economy takes off. The most well-known gig workers these days are contractors for taxi companies and delivery services such as Uber Eats, but the number of non-employee workers is enormous and rising.

There are pros and cons to working for hire, as is the case with many things. Gig workers are especially fond of their flexibility and the fact that they are in control of their schedule and availability, for the most part. These contracted workers are a loose branch of the company, and in many respects, that is positive for both parties; however, the effect of not joining a company as an employee impacts the welfare of these contracted workers in an adverse way and plays to the benefit of the employers in loosening their legal and financial responsibilities for the safety of the gig workers.

What is Workers’ Compensation?

Unlike a company’s employees, its contracted workers are not entitled to workers’ compensation benefits. According to New Jersey law, an employee or their dependents can receive payment, called workers’ compensation, for any injury or death that occurs as a result of their job throughout the course of their employment there, including loss of wages, medical treatment, and even permanent disability payment.

As wages have risen yearly, so have workers’ compensation payouts. The number of workers’ compensation filings has remained relatively steady over the past decade, but the number of claims having been reopened has risen substantially by year, according to the Department of Labor and Workforce Development statistics.

New Jersey law protects employees who work for uninsured companies in case they are injured on the job through the NJ Department of Labor and Workforce Development’s Uninsured Employers Fund, but this protection does not extend to non-employees. So what if you are a contracted worker for a company – what rights is the company legally obliged to provide you? Read on to learn more about the nature of an independent contractor’s legal relationship with its employer.

Does Workers’ Compensation Apply to the Independent Contractors?

The gig economy took off in the past decade with a dual purpose: workers wanted increased flexibility and the opportunity to work at their leisure. Employers wanted to lower labor costs. Both sides received what they were hoping for, but the real benefit went to employers, who side-stepped responsibilities such as health insurance, paid leave, and workers’ compensation for employees.

In the absence of responsibility for covering such things as social security and workers’ compensation for their gig workers, many companies have exploded revenues without feeling the kickback of support for the contracted workers whom they hire to do their on-the-ground work. Yet this, according to current national law, is legal, and that companies are taking advantage of individuals’ desire for gig work over employment is a natural byproduct of the move toward entrepreneurial mindset among workers.

The National Employment Law Project released a report in 2016 calling for the extension of workers’ compensation benefits to contractors, specifically because of the dangers faced by gig workers such as taxi drivers and bicycle deliverers, and because companies that hire these types of workers often include incentives encouraging working during dangerous conditions.

Consult our Trenton Workers Compensation AttorneysIn 2016, the National Employment Law Project published a paper that advocated that gig workers receive workers’ compensation, especially since occupations such as taxi drivers and bike messengers are among the most dangerous. In fact, companies that employ such gig workers often provide incentives for them to work in inclement and dangerous weather conditions. While a shift in independent contractor’s rights has not been seen at a national level, there are changes being made that reflect an expansion of support for gig workers. In New York, the state requires a fare surcharge that finances a “Black Car Fund,” which offers benefits to all for-hire transportation workers whether or not they are employees.

Consult our Trenton Workers Compensation Attorneys

At Kamensky Cohen & Riechelson, our attorneys are extensively experienced in workers’ compensation law across in Princeton, Ewing, Hamilton, Pennington and across Mercer County, New Jersey, including representing independent contractors who have been injured as a result of their work, as well as traditional employee support for temporary and permanent injury and death claims. To schedule a consultation with a member of our team today regarding your injury on the job.

You can fill out the online contact form to schedule a meeting at our offices in Trenton New Jersey or contact our Mercer County offices today at (215) 337-4915 to learn more about how our workers’ compensation team and how we can assist you.