With the quick spread of COVID-19, many New Jersey employers are questioning the impact of the virus on the workers’ compensation system. Specifically, is the virus a compensable illness that arises out of and in the course of employment?
We know that, pursuant to NJSA 34:15-31, a compensable occupational disease includes all diseases that arise out of and in the course of employment, which are due in a material degree to causes and conditions which are characteristic of or peculiar to that employment.
How can an employee be certain that the virus was contracted at work when the employee has visited other public places? Infected people are moving about their daily lives without even knowing that they have the virus because symptoms do not manifest immediately. Some experts say that the incubation period can be as long as 24 days. Therefore, it will be very difficult for an employee to prove that the virus arises out of and in the course of employment.
An area of employment where we could potentially see an influx in successful occupational disease claims is the public safety worker. If a public safety worker can prove exposure to a “serious communicable disease,” then there is a presumption of compensability. See NJSA 34:15-31.5. A serious communicable disease includes “any disease which, if not treated, may result in disability, chronic illness or death, and is transmittable by association with sick, infected or colonized individuals, including airborne transmission.” See NJSA 34:15-31.4.
Even if the virus is found to be a compensable injury, there is still so much unknown with the health consequences of the virus itself. If recovered fully, will there be a potential for permanent disability benefits? If exposed but not symptomatic, is the employer responsible for temporary disability benefits during the period of any voluntary and/or involuntary quarantine?
Every day, efforts at containment are getting stronger. Governor Murphy has closed all schools, colleges and universities. The Governor has also recommended a curfew throughout the state for non-essential travel. Any opportunity an employer has to limit the exposure of its employees should be considered so as to prevent as many cases of the virus as possible.
Chartwell Law’s team of attorneys are continuously researching how COVID-19 will affect employers in New Jersey and across all states in which we practice. We will continue to inform you as information is obtained. As always, we are available to assist you as you navigate through these uncharted and challenging times.