As Jones Jones LLC continues to monitor the COVID-19 situation, your health and safety remain our top priority. We stand at the ready to assist you with any guidance you may need during these challenging times.  Our firm has taken several measures to ensure that business will continue from an operational standpoint with no disturbance.  Our firm’s technological practices have allowed staff and attorneys to continue working and communicating with clients and business partners with no change.  With over 100 years in the industry, Jones Jones LLC has seen its share of turbulent times, and we will continue to forge on with all of you — our valued business partners and friends.  Thank you, now more than ever, for being a part of our community.

The World Health Organization declared COVID-19 a pandemic on March 11, 2020. As of March 13, 2020, there are over 300 confirmed cases of COVID-19 in New York State. While there are currently less documented cases in New Jersey, we do expect that both states are to see an influx in workers’ compensation claims related to COVID-19.

Everything You Need to Know About Compensability of COVID-19 under Workers’ Compensation Law

New York

To qualify for a workers’ compensation award in New York, a worker must sustain an injury or illness through the course of his or her employment. Mere exposure is not sufficient for an award. The burden of proof is always on the worker to establish that he or she contracted COVID-19 from his or her workplace. Therefore, in general, claims for benefits from an average worker may be difficult to establish and should be denied from the onset.

Successful claims related to COVID-19 may be easier to establish from emergency response workers under the occupational disease provisions of NY WCL § 2(15). To establish an occupational claim, the burden is on the employee to pinpoint a link between COVID-19 and a peculiar characteristic of his or her employment. Thus, healthcare workers tasked with caring for COVID-19 infected patients and the potential for continued exposure to COVID-19 may be sufficient to establish an occupational claim.

Exposure to COVID-19 in the workplace may also be established as an accidental injury pursuant to NY WCL § 2(7). The definition of injury notes, “Only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably arise therefrom.” Again, the worker has the burden of proof and must establish a causal relationship between the employment and COVID-19 with competent medical evidence. See Sale v. Hemsley-Spear, Inc., 6 A.D. 3d 999 (3d Dept. 2004). Accidental injury claims related to COVID-19 are likely harder to establish. With the ongoing community outbreaks of COVID-19, a worker will have difficulty establishing that he or she contracted the virus in his or her place of employment, rather than in the public.

New Jersey

N.J.S.A. 34:15-36 defines permanent partial disability and explicitly notes, “Injuries such as minor lacerations, minor contusions, minor sprains, and scars which do not constitute significant permanent disfigurement, and occupational disease of a minor nature such as mild dermatitis and mild bronchitis shall not constitute permanent disability within the meaning of this definition.” For many of the individuals afflicted, COVID-19 presents as a minor respiratory infection.  The definition of permanent partial disability suggests that in those instances, COVID-19 would not be compensable.

There is also a provision for compensable occupational diseases contained in the New Jersey Workers’ Compensation Statute. Therein, a disease is deemed compensable if it arises out of or in the course of employment and is due to a material degree of causes and conditions which are characteristic of or to a peculiar trade or place of employment. See N.J.S.A 34:15-31. A petitioner most likely would not be able to prove that COVID-19 was caused by a characteristic of his or her work, given the virus can be caught in the public.  An area where we may see compensable claims for COIVD-19 would be from emergency service workers. Emergency service workers are defined under N.J.S.A. 34:15-31.4. The Workers’ Compensation Statute shifts the presumption of compensability in occupational exposure to diseases, including airborne diseases, when public safety workers are exposed to, or have treated individuals with diseases. See N.J.S.A. 34:15-31.5. Therefore, it is likely to see some compensable COVID-19

workers’ compensation claims, but the overwhelming majority should be denied. It is important to remember that the Petitioner, regardless if he or she is an emergency service worker, has the burden of proving that the injury or illness is caused by and arises out of his or her employment.

In light of the COVID-19 pandemic, many companies are encouraging its employees to work remotely, if possible.

This act of social distancing should act as a preventative measure, and will help decrease the amount of claims for benefits related to COVID-19.

If you would like assistance in responding to specific COVID-19 claims, please contact us at clientservices@jonesjonesllc.com (mailto:clientservices@jonesjonesllc.com) so that we can tailor a specific response strategy to the particular facts in your case.