Articles

Workers’ Compensation Protections for Essential Workers Infected by COVID-19

By: Attorney Gary E. Adams & Attorney Kendall W. Medway

Undoubtedly, much in our day to day lives has changed due to the COVID-19 pandemic.  Even basic, everyday activities such as shopping, exercising and working have been profoundly affected.  “Social distancing” is now the new normal.  Many of us now work from home – but for those of us who work on the “front lines,” such as police, fire fighters and medical personnel, this is not an option.  However, just as our daily lives have changed in the face of the threat brought by the coronavirus, so too has the law changed to afford our public safety workers new protections.

It is well-settled Workers’ Compensation law that a worker may be compensated for a disease that s/he develops due to chemical or other exposures in the workplace, such as cancer, or that s/he contracts due to having been exposed to the bodily fluids of an infected patient or co-worker, such as HIV or hepatitis, but these are nearly always complex and fact-sensitive cases.

In 2019 the New Jersey legislature, in recognition of the fact that health care workers and first responders place themselves in harm’s way for the benefit of the general public, enacted the “Thomas P. Canzanella Twenty First Century First Responders Protection Act” (hereinafter referred to as the Canzanella Act).  The purpose of this legislation was to create a rebuttable presumption of compensability in favor of public safety workers who developed or contracted illnesses or diseases due to the nature of the important work that they do.  Under the Canzanella Act, once a public safety worker demonstrates that s/he has been exposed to a hazardous material or substance (such as hazardous chemicals, carcinogens, pathogens and/or bodily fluids/secretions) in the workplace, and that s/he has subsequently developed an illness or disease, it is presumed that that individual is entitled to benefits under the Workers’ Compensation Act until such time (if ever) that the employer is able to convince a Judge of Workers’ Compensation that the illness/disease is NOT work-related.

In other words, it becomes the employer’s burden to prove that the worker’s illness arose due to conditions other than his/her workplace exposure – and this can be a heavy burden indeed.

Although the protection afforded by the Canzanella Act is mighty, the COVID-19 pandemic has shown us that its reach isn’t quite long enough.  The Canzanella Act was originally drafted in the aftermath of the then-recent 9/11 terrorist attacks and was crafted with the interests of those brave first responders in mind.  However, there are many New Jersey workers who are out there working every day in grocery stores, in urgent care facilities, on construction sites, on the roads and in dozens of other places – but who cannot technically be called “public safety workers.”  Certainly, their efforts are worthy of recognition, and surely, as many of them as possible should be given the same protection under the law.

To this end, the New Jersey Senate has recently passed new legislation that would effectively extend the protections found under the Canzanella Act to other, “essential” employees whose duties are themselves essential to the public’s health, safety and welfare, and who contract COVID-19.  This legislation has yet to be signed into law but suffice it to say that many New Jersey workers could fall within its ambit.

The wave of COVID-19 related Workers’ Compensation claims that the future is likely to bring will present numerous challenges, but here are the things that you can do to give yourself the best available protection.  First, make sure that you seek medical attention immediately if you have any reason to believe that you have been exposed to somebody in the workplace who has COVID-19, or if you begin showing any of its known symptoms.  Second, if you test positive, make sure that you advise your employer as soon as you can and ask that your employer report the claim to its Workers’ Compensation carrier.  Third, consult with knowledgeable and experienced Workers’ Compensation attorneys, like the ones here at Pellettieri Rabstein & Altman – and get us involved early on in the process, because the law evolves and changes, and we can help you navigate these relatively uncharted waters.

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A description of methodology
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A description of methodology
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A description of methodology
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