Workers’ Compensation Presumption Reactivated with New Jersey’s Issuance of New Public Health Emergency

UPDATE:  On March 7, 2022, Governor Murphy once again lifted the COVID-19 public health emergency, and consequently the presumption created by SB2380.

In an effort to combat the rapidly spreading COVID-19 Omicron variant, on January 13, 2022, Governor Murphy reactivated a presumption that essential workers’ contraction of the virus is work-related for purposes of workers’ compensation claims.

The Rise and Fall of The Workplace Presumption for Essential Workers. To establish a compensable COVID-19 claim under New Jersey’s Workers’ Compensation Act, the employee must show that he/she contracted the virus directly from the workplace. The difficulty in establishing where an individual contracts a communicable disease explains the scarcity of compensable seasonal influenza workplace claims. However, on September 14, 2020, Governor Murphy signed SB2380, retroactive to March 9th, removing this requirement in COVID-19 cases for essential workers during a public health emergency declared by the Governor, by creating a presumption that the employee contracted the virus in the workplace. Under the bill, the presumption of workplace contraction can only be refuted by a preponderance of the evidence showing the essential worker was not exposed to COVID-19 in the workplace.

The law 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.

Notably, S2380 provides that any workers’ compensation claims paid as a result of the presumption shall not be considered in calculating an employer’s experience or premium rates under its workers’ compensation policy.

On June 4, 2021, Governor Murphy signed Executive Order No. 244 ending the COVID-19 public health emergency as of July 4, 2021, and consequently the presumption created by SB2380.

The Resurrection of The Workplace Presumption. On January 13, 2022, in response to the dramatic rise of the Omicron variant, Governor Murphy issued Executive Order No. 280 reactivating the public health emergency. In so doing, SB2380’s presumption that essential workers’ contraction of the COVID-19 is work-related is also reactivated. Until Governor Murphy once again ends the State public health emergency, the workplace presumption will control UNLESS the employer can show, by a preponderance of the evidence, that the exposure did not in fact occur in the workplace. However, employers need to be mindful that there is a gap between July 4, 2021 and January 13, 2022, during which the public health emergency was declared over and the presumption in favor of essential workers is not applicable.

We will continue to monitor the Governor’s Executive Orders, keeping in mind that once the public health emergency is declared over, the presumption set forth in SB2380 will end once again. In the interim, we strongly recommend that employers review the dates of any workers’ compensation claims to determine whether the presumption in favor of essential workers is applicable.