COVID-19 Related Illness
Due to the pandemic, we have received numerous inquiries as to whether a worker may receive workers’ compensation benefits for COVID 19 related illness. The short answer is: yes if the worker can demonstrate that they contracted COVID 19 on the job.
Because COVID 19 may be contracted in numerous ways, including community spread outside of employment, the worker will need to offer sufficient facts that would lead a reasonable person to conclude that the employee’s workplace caused the infection.
For certain workers, this is easier than others. For example, The Thomas P. Canzanella Twenty-First Century First Responders Protective Act provides that public safety workers, including fire, police, medical, and other first responders, are entitled to a presumption of compensability if that worker can demonstrate exposure at work to a serious infectious disease.
Likewise, on September 14, 2020, Governor Murphy signed a law (retroactive to March 9, 2020) creating a rebuttable presumption that any “essential employee” who contracts Covid-19 while performing employment functions and interacting with the public during the public health emergency declared by Governor Murphy is entitled to New Jersey Workers’ Compensation benefits.
Covid 19 Accidental Disability Pension Law
On July 1, 2020, Governor Murphy signed into law A3945, which extends both an accidental disability pension as well as a death benefit for eligible beneficiaries to eligible law enforcement officers, state troopers, firefighters, and emergency medical responders who are enrolled in PERS (Public Employees’ Retirement System), PFRS (Police and Firefighters’ Retirement System), or SPRS (State Police Retirement System) that contract COVID 19 on the job. The law has several specific requirements to establish eligibility, but those who qualify it provide a much-needed expansion of the Accidental Disability Pension Law’s scope to benefit workers and their families made permanently disabled or who die as a result of COVID 19.
Reminder - NJ Workers Cannot be Required to Wave Workers’ Compensation Claims Against Their Employers OR Personal Injury/Negligence Claims Against Third Parties that Cause Their Work Injuries
Perhaps borne out of fear of the economic uncertainty caused by the COVID 19 pandemic, we have noted certain employers attempting to require employees to waive their rights as a condition of employment purportedly.
In New Jersey, workers should be aware that they cannot be required to waive their workers’ compensation rights against their employer. Specifically, N.J.S.A. 34:15-39 expressly declares any “agreement, composition, or release of damages made before the happening of an accident” to be contrary to public policy. This has been held to void attempts by employers to compel employees to waive workers’ compensation benefits.
Moreover, our New Jersey Supreme Court has also made clear that employers may not limit an employee’s right to sue a third party (meaning, someone other than the employer or co-worker who caused the injury) by requiring an employee to sign a purported waiver of rights against third parties such as outside contractors, suppliers, vendors, clients, etc. See Vitale v Schering-Plough Corp., 231 N.J. 234, 242 (2017).
Both of these prohibitions make inviolate a workers’ right to seek redress for work injuries.
Worker Health and Welfare Funds are Not Typically Responsible for Work Injuries
In New Jersey, the Workers’ Compensation Act makes the employer and its workers’ compensation insurance carrier primarily liable for work injury benefits, including medical treatment costs, temporary disability payments, and a permanency award. Besides, many Union Health and Welfare Funds plan documents expressly exclude payment for work injuries, or create a lien if the worker erroneously uses his Union benefits to pay for treatment. This is due in part to risk allocation decisions, and cost-shifting mechanisms by the New Jersey legislature and recognized and adhered to by the Funds. Workers that circumvent the workers’ compensation system and instead put their work injury medical bills through their Union funds may unknowingly be contributing to excess financial stress on their Health and Welfare Funds as those bills were in the first instance supposed to be borne by the employer’s workers’ compensation insurance carrier as the primary insurance on the risk. Thus, failing to claim through the employer’s workers’ compensation carrier may financially benefit the private insurance company while working a financial disadvantage on the injured workers’ Union Health and Welfare Funds.