Governor Phil Murphy deemed in Executive Orders certain individuals as essential workers. Those essential workers went beyond public safety workers and included individuals who work in grocery stores, pharmacies, restaurants, gas stations, delivery personnel and financial institutions including banks. Last year, the New Jersey Legislature passed the Thomas Canzanella 21st Century First Responders Act (hereinafter First Responders Act) which provides public safety workers, as defined by the statute, a presumption that if the worker contracts a serious communicable disease or related illness, like COVID 19 Coronovirus, that it is deemed by law to be related to their job. This is a crucial designation that opens up the right to obtain Workers Compensation benefits which include temporary disability benefits, payment of medical bills, and a monetary award based on a percentage of permanency due to the virus.
As currently defined, public safety workers do not include grocery store workers, pharmacy workers, restaurant workers, gas station workers, delivery personnel, and financial institutions or bank workers. These workers although deemed “essential workers” are not currently contained within the definition of “Public safety workers” in the First Responders Act.
What does this mean for Essential Workers?
The current New Jersey version of the First Responders Act does not provide the presumption to all essential workers. The current version provides the presumption that its related to their job if you are a police or fire department worker, correction facility officer or employee, EMT, nurse, or advanced medical technicians.
All other “essential workers” could potentially be entitled to benefits under the state’s workers’ compensation law but without the presumption, in place, the worker would have to establish a connection between the employment and the illness. It is not an insurmountable burden but workers compensation insurance carriers are more likely to deny the claim on the onset and make the essential service worker prove that their illness “arose out of or in the course of their employment.” Since the Coronavirus COVID 19 can infect a person outside of work and can be acquired from an asymptomatic person, the advantage goes to the workers’ compensation carrier defending a claim who can point to such medical evidence and even if there are other co-workers infected with COVID 19 Coronavirus, a denial can be justified as not being in bad faith.
Occupational Injury Cases A Possible Avenue to Benefits
New Jersey Workers Compensation law does provide for “occupational injury” cases. In other words, an illness acquired due to exposure to substances that are known to cause illness when an employee has worked with those substances for some time. A common occupational injury when asbestos was widely in use was mesothelioma. Asbestos occupational claims have decreased as the use of asbestos use decreased. Other airborne illnesses can be related to exposure at work but those illnesses can be attributed to specific chemicals, compounds, or dust that are prevalently found at the worksite and not outside of work. The argument to be made is even if you acquired COVID 19 Coronavirus is that it was not acquired during employment but outside the work environment. Although COVID 19 Coronavirus is more contagious and deadly than the annual flu, the argument will be made that an employer is not responsible for consequences of a Flu so why should it be responsible for the consequences of COVID 19 Coronavirus.
Insurance Company Denials Will Make Life More Difficult.
There are cases that Workers Compensation Judges have found that diseases that can be acquired outside of work, are nevertheless found to be work-related. Lyme disease is caused by a tick bite. A tick bite can occur while hiking through the woods or a recreational path and in some neighborhoods by ticks transported by deer into residential areas. So when a groundskeeper at a country club was diagnosed with Lyme Disease, the insurance carrier rejected the claim. After a trial where experts opinioned due to the nature of the work performed by the employee including spending 40 hours a week outdoors at his workplace, year-round, many a time in “rough edges of the woods where infected tick larvae were usually found” made it more probable than not that the employee acquired Lyme at work. Medical experts, on behalf of the employee, opinioned that the employee probably had contracted the disease on the job because he had very limited time outdoors beyond his work. Although the employee was ultimately successful even after an appeal, one can see that given the number of potential cases arising from COVID 19 Coronavirus, that it would an injustice to have essential employees have to litigate their cases to reach a similar result. Essential workers deserve our gratitude and assistance if they become sick with COVID 19 Coronavirus. Providing essential Workers Compensation Benefits would provide that assistance in the form of temporary disability benefits, medical bills paid, and a monetary award in the form of a permanency award at the end of their treatment.
What can be done remedy to the statute?
Simply, the statute should be extended to “essential workers” which would include Public Service employees as previously defined by the Statute and the other essential workers: grocery store workers, pharmacy workers, restaurant workers, gas station workers, delivery personnel, financial institutions employees on the front line and bank workers. This would remedy the gap contained in the present definition of Public Service employees and conform to the Legislations original intent. To provide essential Workers Compensation insurance to those providing an essential service to the public in the middle of this health crisis, and epidemic.
Essential Service Employee Deserve A Safety Net.
New Jersey Senator Steve Sweeney has proposed legislation to shift the burden of proof to the insurance carrier to prove that a worker who has contracted COVID 19 Coronavirus did not acquire it at work. Although laudable, the law would create as some critics have pointed out a proof burden that would be insurmountable. Although the critics may be correct, there is a need to provide basic benefits to workers deemed “essential workers” who are not currently covered under the definition of “public safety employees”. These workers have been deemed “essential workers” and are on the frontline at grocery stores, pharmacies, restaurants, gas stations, delivery services, and financial institutions. These workers if they were not deemed essential workers would have been unemployed and sheltering at home collecting unemployment and the federal government additional unemployment benefit in the safety of their own home. They deserve the safety net of Workers Compensation benefits if they become sick from exposure to the COVID 19 Coronavirus.
If you need additional information or to learn your rights, please call (973) 481-4364 to discuss your specific situation with an Attorney.