March 27, 2020
By Jeffrey E. Grabelle
Now that the COVID-19 pandemic (also known as the novel Coronavirus) is upon us, many business clients are having to adjust to the new normal of having their employees work remotely. Even though employees are not working at their regular place of employment, employers may still be held responsible for accidents and exposures that occur during the course of employment while working from home. Below are some basic guidelines on how to handle workplace injuries in the age of the Coronavirus.
In recent weeks, many businesses have been asking their employees to work remotely “until further notice.” due to fear of the spread of COVID19 in the workplace. This has become more commonplace since Governor Phil Murphy placed the State of New Jersey under a State of Emergency, which requires the majority of employees to stay at home to help stop the spread of the Coronavirus. Under current case law and statutes, whenan employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion, or are ordered to do so by the Government, employers will not be responsible for workers compensation benefits. The act of sending employees home to work remotely, or by order of the Governor is deemed “preventative in nature” and not based on any work-related exposure.
As indicated above, the Governor of NJ has essentially shut down the State of New Jersey pursuant to Executive Order. Most businesses have had to send its employees home for an indeterminate period of time. Most employers have contingency plans that allow for remotely working from home. However, not all business have this capability. So, if a business shuts down but there is no ability for remote work at home, will that employer owe workers’ compensation benefits? Clearly, the answer is no, because there is no injury to the employee that arises out of and during the course of employment.
The Executive Order signed by Governor Murphy designates certain categories of employees as essential. These include public safety officers, as well as those on the front line battling the Coronavirus, such as first responders, doctors and nurses. Many medical professional business owners may face the likelihood where their employees (doctors and nurses) come into contact with patients they are caring for who have been tested positive for COVID19. If that employee now tests positive for the Coronavirus after being exposed to people with the disease, it appears that the employee would qualify for benefits under the Thomas P. Canzanella Twenty First Century First Responders Protection Act, which became law on July 8, 2019, which creates a a presumption of compensability for public safety workers, including doctors and nurses, who are subjected to a potential exposure, including airborne exposures.
With respect to non-essential, non-public employees who must still report to work despite the Executive Order, issues arise as to whether an exposure to the Coronavirus in the workplace would be compensable. The Occupational Disease Statute would be controlling (N.J.S.A. 34:15-31). It appears that it would be difficult for this type of employee to bring a successful claim since the employee would have difficulty proving that the medical condition was “more likely than not produced by causes which are characteristic of or peculiar to one’s occupation in a material degree.”
Lastly, with so many employees now working remotely, there is the very real possibility that employees working from home may get injured and file claims. The standard, as it is presently in all workers compensation cases, is whether the employee can prove that an injury arose out of and in the course of the employment. So, if a worker is participating in a Zoom conference that is work related and goes to pick up a box of files and injures his lower back, that would be deemed compensable. However, if that same employee went for a walk around the block and slipped and fell on ice, that would not be compensable.
The bottom line is there will be an interplay between workers compensation claims and the Coronavirus. Employers should familiarize themselves with the current case law and statutes. I will update this blog as new information becomes available.