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NJ’s Presumptive COVID-19 Bill for Essential Workers: Everything You Need to Know

09.16.2020 Leave a Comment

On September 14, 2020, Governor Phil Murphy signed S.B 2380 into law. The new law allows for the shifting of the burden of proof for essential workers who contracted COVID-19 to the respondent. With this reform, a new rebuttable presumption now exists. The presumption is that an essential worker, working with the general public, who tests positive for COVID-19, developed the virus in the course of their employment. The reform is retroactive from March 9, 2020.

The Bill outlines covered essential workers into four different categories:

A public safety worker / first responder;
A healthcare worker (including transportation and social services);
Anyone working in close proximity to the public (this would include grocery and liquor store employees, bank/ financial service employees, residential services, and hotels);
Any other employee deemed an essential employee pursuant to the State of Emergency declarations.

Any state employee who was given the option of remote work, and refused it, would not be covered by the new law.

While the reform shifts the burden of proof from the petitioner to the respondent, the presumption is rebuttable.

Defense counsel can rebut the presumption by a preponderance of the evidence that the essential worker did not contract COVID-19 while working. In other words, the defense counsel would have to prove that it was more likely than not (greater than 50%) that the essential worker did not contract COVID-19 while at work.

What does this mean for you?

This makes the investigation of COVID-19 claims incredibly crucial. A defense counsel must be cognizant of the essential worker’s day- to-day life and other factors.

For example, some factors may include: if the essential worker was taking public transportation to work, if the worker was employed by more than one company, and whether or not the essential worker lived with anyone who had contracted COVID-19 prior to becoming sick. Questions regarding whether or not the essential worker self-quarantined or attended any social gatherings will also be helpful.

Your attorneys at Jones Jones LLC stand at the ready to navigate this new reform with you by thoroughly investigating the facts of the claim as well as the outside factors that could contribute to an essential worker contracting COVID-19.

Examining New York and New Jersey Workers’ Compensation Claims Arising Away from the Place of Employment

07.06.2020 Leave a Comment

Prior to the COVID-19 outbreak, many employers found it beneficial to convert their employees from a commercial office space environment to a work-from-home status. Whether employees are full-time work-from-home employees or have work-from-home privileges a few times a week or month, workers’ compensation claims can and do arise while workers are working from home and require careful consideration to limit risk.

New York

New York has had a “home office exception” for compensable accidents since 1968. Employees who work from home, outside the direct physical control of their employers, can alternate between work-related and personal activities when they choose. For this reason, injuries sustained by employees working from home should only be found to be compensable when they occur during the employee’s regular work hours and while the employee is actually performing her employment duties.

In a 2019 decision, the Workers’ Compensation Board disallowed a claim for benefits from an accidental injury sustained while a Claimant was moving office furniture during his lunch break. See 2019 NY Wrk. Comp. LEXIS 4888, 2019 NY Wrk. Comp. 1953353 (N.Y. Workers’ Comp. Bd. May 3, 2019). In this matter, the claimant had a telework agreement with his employer. His employer provided him with a computer tower, two monitors, and a keyboard. The employer refused to purchase home office furniture for the claimant. The claimant, therefore, purchased his own furniture, and while on his lunch break, and carrying the furniture into his home, sustained injury.

A Workers’ Compensation Judge, after hearing testimony, found that the claimant’s injury did not arise out of or occur during the course of the claimant’s employment. The Judge based their opinion on the fact that the employer did not pay for the furniture, and that the claimant was on his lunch break. The claimant moved for Full Board Review. The Workers’ Compensation Board disallowed the claim. In its opinion, the Board discussed that working from home provides workers with a greater ability to switch from work functions to purely personal functions. Accidents that occur while performing a work duty while working from home, should be the only accidents deemed compensable. Injuries which occur while the claimant is not actively performing his or her work duties, such as taking a short break, getting something to eat, exercising or using the bathroom, for example, should be found to have arisen from “purely personal activities [that] are outside the scope of employment and not compensable”. Matter of McFarland v Lindy’s Taxi, Inc., 49 A.D.3d 1111(2008). As the claimant was not performing a work duty at the time of his injury, and the furniture was not purchased by the employer, the Board disallowed this claim.

Whether an injury is compensable for a telecommuting employee is a fact-specific inquiry in New York. Employers should work with defense counsel to provide telecommuting agreements, if applicable, as well as provide a list of any materials that the employer furnished. When appropriate and possible, an employer should conduct periodic checks of employee home offices to help identify and eliminate work area safety hazards.

New Jersey

New Jersey has several cases of work from home accidents which have been deemed compensable, and a few which have been denied, and generally follow a similar legal analysis to New York. In Renner v. AT&T, 218 N.J. 435 (2014), the Petitioner passed away in September of 2007 as a result of a pulmonary embolism. Per her teleworking agreement, Ms. Renner was allowed to work from home several days a week. After her death, Ms. Renner’s husband filed a dependency claim for benefits, and a workers’ compensation judge awarded benefits. The Petitioner’s expert opined that Ms. Renner’s sedentary work contributed to her embolism, and placed more weight on her sitting for extended periods of time due to the deadline-driven nature of her job, than her preexisting underlying health conditions. AT&T’s expert opined that Renner’s underlying health problems contributed to the blood clot, which ultimately traveled to her lungs. The Appellate Division reversed the Workers’ Compensation Judge’s award of benefits and remanded for further proceedings.

Under Section 7.2, “the employee must prove by a preponderance of the evidence that the injury or death was produced by a “work effort or strain” involving a substantial condition or event happening in excess of daily wear and tear of Claimant’s daily living.” See N.J.S.A. 34:15-7.2 The Supreme Court held that there was no showing that the Petitioner’s death resulted from a work effort or strain in excess of the daily wear and tear of her job. The Supreme Court explained that her job responsibilities did not keep her in cramped conditions, or maintain that she sit for the entire day.

Another case, Benvenutti v. Scholastic Bus Co., No. A-3732-11T1, 2013 N.J. Super. Unpub. LEXIS 739 (App. Div. Apr. 4, 2013) explores the legal implications of a Petitioner who is performing work-duties outside of her place of employment. Benvennutti was employed by a bus driver for the respondent. After dropping children off to school, she was sweeping the school bus while she parked the bus in front of her home. While sweeping, she tripped over a mat on the bus and injured her left ankle. The workers’ compensation judge awarded benefits. The respondent appealed, stating that this accident did not occur during the course of the Petitioner’s employment.

The Appellate Division affirmed theaward of benefits. Citing Jumpp v. City of Ventonor, 177 N.J. 470 (2003). Per Jumpp, “when an employee is assigned to work at locations away from the employer’s place of employment, eligibility benefits generally should be based on a finding that the employee is performing his or her prescribed duties at the time of the injury.” Id. at 483. The Appellate Division applied Jumpp and found that the Petitioner’s testimony that sweeping the bus and inspecting the seatbelts was part of her job expendabilities. As the Petitioner was performing a duty of her job off-site, an award of benefits is appropriate.

Alternatively, the Appellate Division cited Jumpp in Kamenetii v. Sargillo & Sons, LLC, No. A-0394-16T3 2019 N.J. Super. Unpub. Lexis 1833 (App. Div. Aug. 8, 2018) to deny workers’ compensation benefits and distinguish when an off-site activity should be considered in the course of employment. The Petitioner in Kamenetti was a truck driver who stopped a truck stop to take a shower. He sustained injury while in the shower area. The Appellate Division determined that, unlike in Jumpp, Kamenetti was doing a personal chore and him stopping to take a shower was not a requirement of his job. Therefore, Kamenetti was not entitled to workers’ compensation benefits.

For both the New York and New Jersey claims, it is clear that the overarching theme is that for an employee to have a compensable out of office claim, he or she must have been working in furtherance of his or her job. These claims will be very fact-specific, and defense counsel must be able to pinpoint official work duties from personal activities. Defense counsel, when faced with work from home claims, must do a thorough investigation of the facts surrounding the injury. In some instances in New Jersey, it may be helpful for a practitioner to file a motion requesting to propound first notice of injury interrogatories since there may not be an injury report. Similarly, in New York testimony of the Claimant, a detailed review of the C-3 and a pre-hearing discussion with the employer will be invaluable for establishing the circumstances surrounding the injury.

New Jersey Medical Provider Claims: What You Need to Know

07.01.2020 Leave a Comment

What are medical provider claims?

Medical provider claims are contractual disputes brought by medical providers, and medical facilities. They often arise from extraterritorial workers’ compensation claims where a claimant has some type of treatment in New Jersey. New Jersey does not have a fee schedule for medical services under its workers’ compensation structure it uses the “reasonable and customary standard”. New York, by contrast does. Medical providers and facilities often try to recover the difference between a fee schedule allowance and the New Jersey “reasonable and customary” standard which is often much higher.

Why are these claims in the Division of Workers’ Compensation?

Under the 2012 amendments to the New Jersey Workers’ Compensation Statute, the Division was given exclusive jurisdiction over these matters pursuant to N.J.S.A. 34:15-15.

The issue of extraterritorial jurisdiction is currently on appeal before the Superior Court of New Jersey, Appellate Division.

What is the statute of limitations for medical provider claims?

The Supreme Court of New Jersey held that the statute of limitations for medical provider claims is six years. See Plastic Surgery Ctr., PA v. Malouf Chevrolet-Cadillac, Inc., No. A-78/79/80, 2020 N.J. LEXIS 116, at *1 (Feb. 3, 2020).

How can we minimize medical provider claims?

1)If your company has a national presence, avoid sending claimants out of state for treatment, if the state you are sending them to does not have a fee schedule.

2)Work with bill repricing companies to determine in plain language the price of the service billed.

If we have medical provider claim petitions, what should we do?

Since the issue is on appeal in New Jersey, the best course of action is to have defense counsel answer the medical provider claims and deny in the answer additional payment for lack of jurisdiction. Defense counsel should then file a motion to dismiss for lack of jurisdiction. It is also helpful to attach proof of payment for medical services.

Are there any cases that are helpful with this issue?

There is a New York decision, Bowman v. J & J Log & Lumber Corp., 758 N.Y.S.2d 852 (App. Div. 2003). New York’s Third Department held that a claimant could treat in a neighboring state for a New York workers’ compensation claim, but medical providers would be subject to the New York Fee Schedule. This case is persuasive, as it is a New York case, but it is helpful because there is not an appellate level case from New Jersey as of this time.

Another case that we often argue is Marconi v. United Airlines, 460 N.J. Super. 330 (App. Div. 2019). In Marconi, the petitioner filed both an occupational exposure claim for his left hip and an accident-specific left hip injury claim petition. Marconi was employed by United Airlines and spent the majority of his career in Philadelphia International Airport. Marconi was a New Jersey resident and would sometimes call Newark Liberty International Airport, to speak with staff, and would sometimes go to Newark for trainings. The Appellate Division, applying a jurisdictional analysis, held that being a resident of New Jersey was not enough for New Jersey to retain jurisdiction. The Appellate Division also examined the six factors of jurisdiction from Professor Larson’s treatises which include: 1) the place where the injury occurred; 2) the place of the making of the employment contract; 3) the place where the employment exists or is carried out; 4) the place where the industry is localized; 5) the place where the employee resides; 6) place whose statute the parties expressly adopted by contract. The Appellate Division held that the fact that United had a hub in New Jersey was not enough for Marconi to establish claims in New Jersey. The Appellate Division noted that nothing that Marconi did advanced United Airlines purpose within the State of New Jersey.

During COVID-19 Federal Protection May Remove the Need to Supply Temporary Disability Benefits

07.01.2020 Leave a Comment

On March 18, 2020, President Donald Trump signed into the law the Family First Coronavirus Response Act (FFCRA). Under this law, there are two components to temporarily expand benefits to workers affected by COVID-19, the Emergency Paid Sick Leave (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The Acts became effective on April 1, 2020 and will expire on December 31, 2020. The United States Department of Labor a Wage and Hour Division is responsible for enforcing these Acts.

In terms of workers’ compensation temporary disability benefits, these Federal Acts would make the need for carriers to pay temporary disability benefits unnecessary. The Acts will apply when a worker cannot work at their job site (if deemed essential) or telework due to illness, or if telework is unavailable. It is important to note that if a company temporarily closes due to COVID-19, these Acts do not apply and the employee may be eligible for unemployment benefits.

The Acts will reimburse private American companies that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for COVID-19 related reasons. These acts are meant to provide payment for employees who fall under six categories that cannot show up to work (if working for an essential business) or telework due to COVID-19 reasons. First responders and healthcare workers are exempt from these Acts. Companies with less than 50 employees may also be exempt if they can prove financial hardship by adhering to the Acts.

The Emergency Paid Sick Leave Act (EPSLA) provides employees with up to two weeks paid sick time. For full time employees, that means 80 hours of paid sick time, for part-time employees, the amount of hours is based on the amount of hours worked on average. The EPSLA caps payments at $511 a day or $5,110 total. THE EPSLA will pay at the full rate of pay for three categories: 1) the worker is subject to federal/state/local quarantine or isolation due to COVID 19 and cannot work or telework; 2) Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes; and 3) The worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.

The EPSLA also applies for three additional categories where the rate of pay is capped to 2/3 of the employee’s salary or at $200 day. These categories include: 1) the worker is caring for an individual who is subject to a quarantine or has COVID-19; 2) the worker is caring for a child whose place of care is closed due to COVID-19 reasons; and 3) the worker is experiencing any other condition substantially similar to COVID-19.

The Emergency Family and Medical Leave Expansion Act (EFMLEA) can be used for 12 weeks when an employee has to care for his or her children whose school or place of care is closed due to COVID-19 related reasons. The rate of pay for this would be 2/3 of the employee’s pay. The first two weeks are unpaid. This can only be used by employees who are not eligible for telework.

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
Worker is caring for an individual who is subject to a quarantine or has COVID-19
Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

2/3 of the employee’s rate of pay.

How much is paid?

There is a $511 a day cap; or $5110 in total for reasons 1-3;

2/3 paid or a $200 a day cap for reasons 4-6

How long will the worker be paid?

This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks;

This is an expansion of FMLA.

How long will the worker be paid?

This is for two paid work weeks

EFMLEA v. EPSLA

EFMLEA

EPSLA

Applies when:

Employee can only use EFMLEA leave to care for his or her child or children whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons.

Applies when:

Worker is subject to federal/state/local quarantine or isolation due to COVID-19 and cannot work or telework is not an option.
Worker has been advised by a healthcare provider to self-quarantine due to COVID-19 related causes
Worker is experiencing COVID-19 symptoms and awaits a medical diagnosis.
Worker is caring for an individual who is subject to a quarantine or has COVID-19
Worker is caring for a child whose place of care is closed due to COVID-19 reasons.
Worker is experiencing any other condition substantially similar to COVID-19

How much is paid?

-2/3 of the employee’s rate of pay.

How much is paid?

-There is a $511 a day cap; or $5110 in total for reasons 1-3

-2/3 paid or a $200 a day cap for reasons 4-6.

How long will the worker be paid?

-This will last for 12 weeks; however; the worker will not receive pay for the first 2 weeks.

-This is an expansion of FMLA.

How long will the worker be paid?

-This is for two paid work weeks

How Will COVID-19 Impact Your Claims in New York and New Jersey

04.06.2020 Leave a Comment

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.