Special Alert—COVID-19 and Workers’ Compensation Litigation Update for New Jersey

The New Jersey legislature has proposed new legislation for workers’ compensation that would lower the burden of proof regarding compensability for “essential workers” who contract coronavirus, NJ S2380, 2020-2021. The stated purpose of the bill is to create a presumption that COVID-19 infections contracted by essential employees, such as health care workers and public safety workers, are now a work-related injury. While the bill provides definitions for “health care worker” and “public safety worker,” it does not define an “essential employee.” This is where the bill gets murky as it does not specifically define who is an essential worker:

‘Essential employee means that (1) the employee is considered essential in support of gubernatorial or federally declared statewide emergency response and recovery operations; or (2) the employee is 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.

Rather than defining “essential worker,” the bill simply refers to the New Jersey governor’s emergency declaration, Executive Order 103 of 2020. The emergency declaration order also does not clearly define what an essential worker is. However, New Jersey’s official COVID-19 Information Hub contains a list of what are defined as Essential Retail Business. While there is no indication that this list would be considered synonymous with the term “essential workers,” unless there is some clarification in the final bill, it could be used as the basis to attempt to expand that definition well beyond what the bill intended.

The bill has already passed in the New Jersey Senate. As of May 28, 2020, the bill sits in the New Jersey Assembly’s Labor Committee. We will keep a close watch as the bill progresses and advise once it moves out of committee and onto a final vote in the Assembly.  

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