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Many are pushing for the enactment of legislation which would create a rebuttable presumption of compensability for essential employees who contract COVID-19. On May 4, 2020, specific legislation was introduced to both the New Jersey senate and the assembly and speaks to essential employees, in particular.
Right now, the burden is on employees to show that they contracted the coronavirus at work. Because this disease is easily spread, it is near impossible to prove that an injured worker contracted the virus while working, as opposed to contracting it outside of work. The bill, if enacted, effectively takes the burden off the worker to prove that they contracted the virus at work. If passed, it will be presumed that the disease occurred at work.
This bill specifically concerns essential employees, who perform functions pertaining to those roles and involve interactions with the public, during the public health emergency declared by Governor Murphy’s Executive Order 103. The bill defines an essential employee as one who is essential in support of gubernatorial or federally declared statewide emergency response and recovery operations; or an employee in the public or private sector with duties and responsibilities, the performance of which is essential to the public's health, safety, and welfare. This would cover grocery store clerks, gas attendants, delivery drivers, and other employees that continue to work for businesses that have been designated as essential by Governor Murphy.
Clearly, this will impact employers significantly, as it will become very difficult to defend these claims. However, what is important to remember is that there is a provision that affords the employer the ability to rebut the presumption. The standard as set forth in the bill is 'by a preponderance of the evidence' showing that the employee was not exposed at work. This means that the employer must show that there is more than a 50 percent chance that the virus did not occur at work. Therefore, it will be very important to maintain proper reporting procedures if, and when, a worker tests positive for COVID-19.
The bill is very similar to section 31.5 of the statute which provides a presumption of compensability for first responders, public safety workers, and emergency workers in the event of the spread of a communicable disease. Parts of this section were amended in response to the catastrophic events of the terrorist attacks in New York City on September 11, 2001. The legislator could not foresee the need to include ‘essential employees’ during a crisis such as the events on September 11th and this is clearly the legislatures attempt to have as many workers covered as possible.
Additionally, the bill also provides that an essential employee's absence from work due to the virus cannot be considered "on-duty time." The employer will be prohibited from charging the employee for a paid leave of absence. This would cover any time necessary for self-quarantine or hospitalization.
If enacted, the bill is proposed to be retroactive to March 9, 2020, the date that Governor Murphy declared a state of emergency concerning the coronavirus pandemic. We will be monitoring this bill very closely and keeping you updated as decisions are made.
