1. Would a claim for COVID-19 be considered a compensable occupational disease injury under the Workers’ Compensation Act?

Yes. A claim for COVID-19 may be considered a compensable occupational disease injury under N.J.S.A. 34: 15-31. Public safety works have a stronger argument for an occupational claim as their job places them in direct contact of the virus. Conversely, non-public safety workers would have a greater difficulty meeting their burden that their medical condition was a direct or material result of their occupation or exposure during the course and scope of employment.

2. What is the jurisdictional rationale that makes the claim compensable? Provide all rules that would apply to make the claim compensable.

N.J.S.A. 34:15-31 defines a “compensable occupational disease” as “all diseases arising out of and in the course of employment, which are due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment.” An occupational disease claim for COVID-19 would fall under this classification.

3. If the employee is directed by the employer to quarantine due to possible exposure at work (and the employer is continuing full salary for 14 days), does the employer’s direction make the claim compensable under the Workers’ Compensation Act?

No. An employer’s direction of quarantine in order to take safety precautions, while still providing full salary during that period, does not give rise to a compensable claim. A requirement to quarantine due to possible COVID-19 exposure would entitle them however to pay employees during that period.

As of April 1, 2020 there is also the Paid Emergency Sick Leave Act. The purpose of the Act is to provide sick time to employees who are unable to work due to the following situations:
• Quarantine or isolation relating to COVID-19
• Self-quarantine ordered by a health care provider
• Employee experiencing symptoms of COVID-19 and seeking medical diagnosis
• Employee who is caring for an individual who is quarantined or is self-quarantined
• Employee is caring for a son or daughter due to school of child care closure due to COVID-19 precautions
• Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor
The Act applies to all public and private sector employees with less than 500 employees. Full-time employees are entitled to 80 hours of paid sick time. A part-time employee is to receive required compensation for two-thirds of the amount of their usual pay
4. Are “first responders” considered at greater risk than the general public under the Workers’ Compensation Act?

Yes, first responders or public safety workers are more likely to have a compensable occupational disease injury from COVID-19 due to the direct and continuous contact with the virus. Causation for those individuals is less ambiguous than others who could have contracted the virus anywhere.

5. Is “Pharmacy” considered a first responder under the Workers’ Compensation Act?

N.J.S.A. 34:15-31.4 defines a public safety worker to include “a Community Emergency Response Team approved by the New Jersey Office of Emergency Management, or a correctional facility, or a basic or advanced medical technician of a first aid or rescue squad, or any other nurse, basic or advanced medical technician responding to a catastrophic incident and directly involved and in contact with the public during such an incident. . .”

While a pharmacy is not specifically classified under statute as a first responder or public safety work, in positions where an employee can show legitimate potential exposure to the virus wile at work, there is a stronger argument for compensability. However, the mere classification of a public safety employee is not dispositive for a compensable workers’ compensation claim as it cannot definitively establish causation.

6. Is the state calling for legislation that would eliminate the burden of proof for workers making a COVID-19 occupational disease claim? If so, please provide summary of what is being proposed.

To date, there is not any proposed legislation that would eliminate the burden of proof for workers making a COVID-19 occupational disease claim.

7. Has the state governor issued an executive order allowing for COVID-19 cases compensable under the Workers’ Compensation Act? If so, please provide copy of the executive order.

To date, there has not been any specific executive order classifying COVID-19 cases compensable. N.J.S.A. 34:15-31 is controlling for occupational disease claims.

8. If COVID-19 claims are compensable under the Workers’ Compensation Act, is the waiting period waived?

No. To date, there has been no waiver of the waiting period for COVID-19 claims.

9. If the claim is compensable under the Workers’ Compensations Act and the employer pays the employee their full salary for the first two weeks during quarantine, how does this affect the TTD benefits?

In the event that a claim is deemed compensable, an employee would not be entitled to TTD benefits during the period that they are receiving a full salary.

10. Can the TTD benefits start be delayed if the employee’s disability extends beyond 14 days if the employee receives their full salary for the first two weeks?

In the event that a claim is compensable, and disability extends beyond 14 days, and if a salary is cut off after two weeks of payment, TTD benefits should be issued immediately following the cut off.

11. Can the TTD benefits be offset by the full salary paid to the team member?

TTD benefits are owed to an injured worker that is disabled for a period of more than seven days. He or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage or fall below the minimum rate of 20% of the State average weekly wage.

These benefits are provided during the period when a worker is unable to work and is under active medical care. Benefits are then retroactive to the first day after the 7 day period. If an employee continues to receive their full salary, they would not be entitled to additional TTD benefits on top of their full salary.