On July 31, 2020, the New Jersey Assembly adopted Senate Bill 2380 (S2380) to expand access to workers' compensation benefits for workers infected with COVID-19. As amended, S2380 would create a rebuttable presumption of compensability for a broad set of COVID-19-positive workers qualifying as "essential employees" in New Jersey, so long as the infected individuals worked somewhere other than their own residence at the time of infection.
"Essential employees" is broadly defined in the bill, and would include not only employees in the public safety, health care, transportation, hospitality and retail industries but also any other employee defined as an "essential employee" in a state of emergency declaration. Under this bill, the presumption of compensability could be rebutted by demonstrating, on a preponderance of the evidence basis, that the worker was not exposed to the disease while working in the place of employment.
Claims paid pursuant to this bill would be excluded from consideration in calculating a given employer's Experience Modification Factor, thereby negating any direct impact on that employer's workers' compensation premium.
Next Steps: Proving a Negative
If enacted, S2380 would take "immediate effect" and apply retroactively to all claims made since March 9, 2020, which is the date that New Jersey Governor Murphy declared a state of emergency related to the COVID-19 pandemic.
From a practical standpoint, enactment of this bill would present a sea-change in the handling of infectious disease claims in New Jersey's workers' compensation system. The rebuttable nature of the proposed presumption of causation is largely illusory in that it requires an employer to prove a negative, i.e., that the employee was not exposed at work, particularly given the evolving understanding of the relative rate of infections arising from asymptomatic or pre-symptomatic carriers of this disease. Moreover, attempting to rebut that presumption potentially raises significant privacy issues, including reliance on the protected health information of co-workers. Although premium increases would not be permitted to be directly correlated to a given employer based on that employer's sick workers, it is highly likely that premiums will rise across the board given the scope of newly compensable benefits contemplated by this bill.
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