John H. Geaney

Proposed Senate Bill 2380 sponsored by New Jersey Senate President Stephen Sweeney seeks to create a new legal presumption of compensability for “essential employees,” including public safety workers and virtually all health care workers who file COVID-19 workers’ compensation claims. This proposed presumption would require the Judge of Compensation to presume that any COVID-19 claim for public safety and health care workers must be found to be work related unless the employer could rebut the claim by “clear and convincing evidence.” There exists no presumption in the New Jersey Workers’ Compensation Act that requires an employer in any circumstance to rebut a claim by clear and convincing evidence. There is a very good reason for that: the standard would be impossible to meet for employers, and it would in effect make employers strictly liable for all COVID-19 cases, whether the claims are causally related or not.

There are both legal and practical reasons that enhanced legal presumptions do not make sense in the context of this pandemic. Consider the legal issue first. For an occupational disease to be compensable it must be proven to arise out of the employment and be produced by causes which are characteristic of or peculiar to work under N.J.S.A. 34:15-31. But the COVID-19 virus is ubiquitous. It spreads wherever people congregate: including churches, grocery stores, post offices, and crowded beaches. Millions of people have the virus and don’t know it. COVID-19 claims are not like traditional occupational disease claims such as black lung among coal miners or Legionnaire’s Disease among workers in an infected building who breathe in the bacteria. These kinds of occupational disease claims clearly meet the test of being peculiar to a particular work environment.

COVID-19 illnesses arise when the virus spreads in any close human contact, whether it is through work or outside work. We all understand how easily the virus can be spread in any life circumstance. A New Jersey family had a gathering in late February that led to the tragic death of four family members from the coronavirus. Other family members also got sick. Sixty choir members in the State of Washington met to practice on March 6, 2020. They sanitized and kept their distance from one another. Within days 45 of 60 choir members became ill because the virus was spread through the air when they sang.

Hospitals, health care providers and public sector employers, their carriers and excess carriers, are now inundated with COVID-19 claims. This is putting enormous financial strain on public sector and hospital budgets at a time when Americans have expressed profound concern about rising health care costs, high taxes, and unfunded pension plans. These claims are now beginning to work their way into the workers’ compensation systems of each state. The good news is that there are already adequate laws In New Jersey to deal with COVID-19 claims without creating an ultra-high legal presumption for a virus that is in every state and every country.

Judges understand that health care workers and public safety workers often work in close proximity to people who may be infected. They may also have non-work exposures as well. In assessing whether any COVID-19 virus arises from work, workers’ compensation judges draw on their expertise in sorting out complex causation issues, factoring in work and non-work exposures. For example, they evaluate claims for alleged cancer from second-hand smoke, Lyme disease, lead exposure, and other environmental claims. In doing so, workers’ compensation judges use a more probable than not legal standard. In fact, there already is a presumption in the 2019 Thomas Canzanella Twenty First Century First Responders Act that shifts the burden to employers to disprove certain claims involving public safety workers by the more probable than not standard. The proposed coronavirus presumption not only shifts the burden of proof to employers, but it imposes an extremely high legal presumption on employers that directly conflicts with the 2019 legal presumption created under the Thomas Canzanella law.

Public policy is important, and the wrong policy is to vastly increase the financial burden on health care, government and their carriers by making virtually all COVID-19 claims compensable through an unrealistic new legal presumption. Carriers did not collect pandemic premiums from their insureds. Requiring government, health care employers and their carriers to pay all COVID-19 claims regardless of causation will add create enormous financial pressure on governments, taxpayers, health care providers and the insurance industry. These are the unintended consequences that can be foreseen by proposed S. 2380. Instead of creating an unrealistic legal presumption that makes a bad situation worse, elected leaders should focus on creating the equivalent of the current federal Paycheck Protection Program to help injured workers and to alleviate the insurance burden on health care, government and carriers.

John H. Geaney is an attorney, executive committee member and shareholder with Capehart Scatchard, a defense law firm in New Jersey. This post appears with permission from Geaney's New Jersey Workers' Comp Blog.