Certainly the most pressing issue in workers’ compensation right now for public employers is how to manage occupational claims for COVID-19. Municipalities and their third party administrators have received hundreds of reported claims for COVID-19. In the State of New Jersey, workers’ compensation provides medical benefits, lost time benefits (called temporary disability benefits), permanency benefits and dependency benefits. No cases have been decided in court or even tried yet, both because courts have been largely closed and because the trial process takes a long time.
The general rule is that the injured worker has the burden of proof under NJSA 34:15-31 to show that his or her occupational illness was produced by causes which are characteristic of or peculiar to work in a material degree. This is not an easy burden of proof for workers to carry because the medical condition at issue here, COVID-19, is fairly ubiquitous now in the United States. One can become infected by close contact at home, in church, in a store, in a park, on a crowded beach or at work and myriad other ways. It is worth noting that employers almost never receive workers’ compensation petitions for flu because the flu is common to the general population, so it is hard to prove it is peculiar to work. As the coronavirus becomes far more prevalent everywhere, proving it is work related becomes harder. The occupational disease statute requires the employee to show that his or her occupational disease was produced by causes that are peculiar to work and not common to all of us.
Each workers’ compensation case involves a unique set of facts, and facts drive outcomes in court. Municipalities along with their third party administrator must fully investigate each claim and require employees to furnish proof of causation. With the exception of first responders discussed below, the burden is on the employee to offer evidence that his or her COVID-19 condition arises from work. Saying “I think I got the virus at work” is not enough without detailed factual support.
When the public employee presents a COVID-19 claim, the third party administrator needs to do a full investigation. That includes interviews of the worker with detailed questions about recent travel, health status of family members, health status of friends, sports or other activities that the worker has engaged in, and a review of recent family doctor records. Those records are vitally important because usually people call their family doctor first and answer questions about recent exposure with respect to COVID-19. These are some of the questions that the third party administrator will focus on in the interview with the worker: doctor and what is his or her address?
- Has the employee been admitted to any hospital, and if so which hospital and on what dates?
- Who is the employee’s family doctor and what is his or her address?
- Has the employee been admitted to any hospital, and if so which hospital and on what dates?
- When did the employee become informed that he or she is COVID-19 positive?
- What was the last date that the employee worked?
- What was the date when symptoms first appeared and what were the symptoms?
- Does the employee have any relatives or friends who are COVID-19 positive?
- If yes, when did the relative or friend become COVID-19 positive?
- How often has the employee been around this relative or friend in the past two months?
- Has the employee traveled anywhere in the past two months, and if so where?
- Has anyone visited the employee from another country in the past two months?
- Has the employee gone to church, family get together or any store in the past two months? If yes, what store and how often?
- If the employee contends that he or she was exposed to the virus at work from a specific person, when did the employee work with such employee and what contact did they have?
After completing all interviews and all investigation, the third party administrator must consider all the facts and often obtain medical guidance from an infectious disease expert before making any determination of compensability.
First Responders and Presumptions
Public employers have unique provisions in the law concerning first responders that other employers do not have. Under the Thomas Canzanella Twenty First Century First Responder Act passed in July 2019, the burden of proof shifts to the employer in certain cases to disprove the claim by a standard of more probable than not. For first responders covered under the Act, there is a presumption that their infectious disease is work related. That presumption can, however, be rebutted by the employer.
The Canzanella Law covers public safety workers, which are defined to include a member, employee, or officer of a paid, partially-paid, or volunteer fire or police department, force, company or district, including the State Police, 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, either as a volunteer, member of a Community Emergency Response Team or employed or directed by a health care facility.
The Act goes on to say in N.J.S.A. 34:15-31.5 that “If a public safety worker can demonstrate that in the course of his or her employment, the worker is exposed to the excretions, secretions, or other bodily fluids of one or more other individuals . . . including airborne exposure to a communicable disease and any one of the other individuals is diagnosed with a serious communicable disease,” there is a presumption that the disease is compensable under the New Jersey Workers’ Compensation Act. The employer may then require the employee to undergo testing, evaluation or monitoring for the purposes of determining whether the exposure is linked to the occurrence of the disease.
So what exactly is a presumption in the law? Think of a football game. The team that starts off with the ball has to move the ball forward. The other side is on defense. In the trial of a normal workers’ compensation claim, the injured worker has the ball and has to move it past the 50 yard line to prevail. There is no need to score a touchdown because in a trial, the test is more probable than not, which is akin to 51%. So the worker must only get past the 50 yard line. But when the burden shifts to the employer, the game starts with the ball already on the employer’s side of the 50 yard line. If the employer cannot move the ball, the employee prevails. That is what a presumption does.
It is fair to say that when there is a presumption of compensability, the municipality is at a disadvantage, but the municipality can still win by showing that the disease was more probably than not unrelated to work. Detailed investigation needs to be done, interviews need to be conducted with the injured worker and co-workers, and a medical expert needs to be consulted to focus on timelines. Medical records need to be obtained by the third party administrator and closely scrutinized to review all statements made about likely exposure. Decisions on compensability take time because investigation takes time. In the interim, a municipality, like any employer, can offer medical treatment without admitting liability. So the municipality may direct care with a local clinic when presented with a COVID-19 claim, but the payment of the medical bills is not an admission of liability.
In the end, if there is a dispute between the employee and the municipality, the Judge of Compensation has the final word, subject to rights of appeal by either party.
Benefits Under Federal Law
When the third party administrator denies a claim under workers’ compensation or an employee self-quarantines, there are benefits available to the employee under the federal Emergency Paid Sick Leave and Expanded Paid Family and Medical Leave Acts. These benefits are more generous than state law, but these benefits do not displace or supersede other paid leave benefits made available under state law.
Pursuant to the Emergency Paid Sick Leave Law, employees can receive up to 80 hours of the following paid leave benefits:
- Up to $511.00 per day (and $5,110.00 in the aggregate) if the employee is out due to:
- Quarantine or isolation relating to COVID-19
- Self-quarantine ordered by a health care provider
- Employee is experiencing symptoms of COVID-19 and seeking medical diagnosis
- Up to $200.00 per day (and $2,000.00 in the aggregate) if the employee is out due to:
- Employee is caring for individual who is quarantined or is in self-quarantine
- Employee is caring for a son or daughter due to school or child care closure due to COVID-19 precautions
- Employee is experiencing any other substantially similar conditions specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor
Under the Expanded Paid Family and Medical Leave Law, eligible employees who have worked for more than 30 days can receive a grand total of 12 weeks’ of leave to care for a child under 18 years old if the employee is unable to work or tele-commute because of a school or daycare closure. The first two weeks of this expanded FMLA leave is unpaid, though the employee could choose to use paid leave under the Emergency Paid Sick Leave Law to cover those two weeks. Thereafter, the employee is entitled to 10 weeks of leave, paid at 2/3rd’s of an employee’s pay, capped at a maximum of $200 per day, with an aggregate total of $10,000.
It is important to realize that the 500 employee limit does not apply to public entities. No matter how many employees a municipality has, the Emergency Paid Sick Leave and Expanded Paid Family and Medical Leave Acts applies. The regulations concerning these leave laws actually have separate definitions of what an “Employer” is for purposes of either a private or public entity. Under Section 826.10 (i)(A)(1), a private entity is defined as an “Employer” employing less than 500 employees; in contrast, Section 826.10 (i)(A)(2) defines “Employer” further to include: “In the case of a Public Agency or any other entity that is not a private entity or individual, employs one or more Employees….” “Public Agency” under Section 826.10 (a) “… includes the government of any state or political subdivision thereof. ”
“Section 826.40(c) explains which public employers must comply with the EPSLA and the EFMLEA. It uses the term “Public Agency,” which has the same meaning as in section 203(x) of the FLSA. Specifically, public agency means the Government of the United States; the government of a State or political subdivision of a State; or an agency of the United States (including the United States Postal Service and Postal Regulatory Commission), a State, or a political subdivision of a State; or any interstate governmental agency. All covered public agencies must comply with both the EPSLA and the EFMLEA regardless of the number of employees they employ, although such employers may exclude employees who are health care providers or emergency responders as described in § 826.30(c).” (Emphasis Supplied.) See, Federal Regulations, Families First Coronavirus Response Act.
Based on the above, public employers must provide their employees with Emergency Paid Sick Leave and Expanded Paid Family and Medical Leave, subject to certain exceptions. In the case of the former leave, a public employer need not provide such leave to health care providers or first responder employees. In the case of the latter leave, the public employer also need not provide leave to health care providers and first responders. Under federal regulations, the United States Department of Labor cautions that such exclusions should be used “judiciously” by employers to prevent the spread of COVID- 19.