Questions And Answers On Coronavirus And New Jersey Workers' Comp

Many clients have been calling and writing me with an array of scenarios in recent weeks regarding the relationship between absences from coronavirus and workers’ compensation in New Jersey. Here is a small sample of some of the questions that I have received:

• Question 1: What happens when an employer sends its employees home for several weeks out of a general concern for safety and for prevention of contagion? Must the employer pay workers’ compensation benefits?

• Answer: No, because there is no indication in this scenario of an injury or work-related illness generating the decision to send the employees home. The action is preventative in nature but not based on any specific work-related exposure.

• Question 2: What if an employer advises an employee that he or she must be quarantined because the employee may have been exposed to someone at work who has the coronavirus?

• Answer: This absence is definitely covered by workers’ compensation because both the employer and the employee are concerned about a possible work exposure that could lead to serious illness. Even if it turns out that the employee does not have the virus, the quarantine period would be covered under workers’ compensation. The situation is similar to one in which an employee may have suffered a high level of lead exposure and is taken out of work for monitoring by his or her physician. After a number of weeks the physician indicates that there is no need to treat any illness. That medical conclusion certainly negates a permanency award but temporary disability benefits would still be owed.

• Question 3: What if the State shuts down a company for a 30-day period and the company has to send everyone home for that period of time with no home work available. Does the employer owe workers’ compensation benefits?

• Answer: This is treated the same as question number one: there is no work injury to an employee so this is not workers’ compensation.

• Question 4: Consider a scenario where an employee is out on temporary disability benefits for a work-related leg injury in January 2020. The company then closes down for a month in March due to federal and state guidelines in response to the coronavirus and asks whether temporary disability benefits can be stopped? On the one hand, the employer might argue that this employee would not have been working anyway given the closure of the company and should therefore not receive temporary disability benefits. On the other hand, the employee would argue that he or she is still actively treating and is not yet at MMI. The employee would further argue that the closure of the office had nothing to do with the conduct of the injured worker. Should the employer stop temporary disability benefits in this situation?

• Answer: This would not be advisable. There is a line of cases beginning with Cunningham v. Atlantic States which held that an employee who has a workers’ compensation claim and who is fired for reasons other than the injury is not entitled to temporary disability benefits unless the employee can prove that he or she would have been working in another job but for the work injury. This practitioner does not believe the Cunningham line of cases applies to a situation like a temporary layoff due to a national crisis such as the coronavirus. It is highly likely that every Judge of Compensation would require the continued payment of temporary disability benefits until the injured employee should reach maximal medical improvement.

• Question 5: What if an employee becomes worried that he has symptoms similar to that of the coronavirus and refuses to come to work? He quarantines himself for 14 days out of concern for his safety and that of fellow employees. No one at work has the virus and it is unclear where the employee may have been exposed, if there was exposure at all. Does this generate an obligation to pay workers’ compensation?

• Answer: No, this is not workers’ compensation because there is no proof of a work-related illness. Whether or not it turns out that the employee has the coronavirus, but there must be some proof under N.J.S.A. 34:15-31 that the illness is work related.

• Question 6: Along the lines above, suppose the employer finds out that the HR Director’s son just returned from Italy, where the number of deaths from coronavirus have now topped those in China. The employer advises the HR Director that she must quarantine for 14 days. Are workers’ compensation benefits due?

• Answer: No, because once again there is no proof of a work related illness. The HR Director’s son may have been exposed in Italy and she may be at risk now, but that has nothing to do with work.

• Question 7: What if two police officers alternate use of a patrol vehicle. On Monday, Officer Tynan is driving the vehicle alone and begins to experience symptoms of coronavirus later that evening, unknown to Officer Aiello, who then drives the vehicle on Tuesday alone. Later in the evening Officer Aiello finds out that Officer Tynan just entered quarantine for suspected coronavirus. Officer Aiello sees her primary care physician who recommends a quarantine period for her. Officer Aiello files a first report of injury based on potential exposure to the virus in the patrol vehicle when she drove it. Is Officer Aiello entitled to payment of temporary disability benefits?

• Answer: In all likelihood, yes she is probably entitled since scientific studies have demonstrated that the virus can survive on certain surfaces for more than 24 hours. Since there is potential work exposure from driving the patrol car, Officer Aiello’s absence from work would be found by the judge to arise from her employment.

• Question 8: Suppose a hospital floor nurse has been working for the past month with patients who have been tested for possible coronavirus.  So far all the tests have been negative.  The nurse is diagnosed with coronavirus herself, becomes seriously ill and is hospitalized.  She files for workers’ compensation benefits for her lost time and medical bills.  Is she entitled to workers’ compensation benefits?

• Answer: This question focuses on the Thomas P. Canzanella Twenty First Century First Responders Protection Act, which became law on July 8, 2019.  The law creates a presumption of compensability for those public safety workers who are subjected to a potential exposure, including airborne exposures, to a serious communicable disease.  The definition of a public safety worker includes police, fire, emergency squad personnel and many other categories of first responders, including “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.”  Based on this law, the nurse would almost certainly receive workers’ compensation benefits unless the employer could somehow rebut the presumption by showing perhaps that a close family member had the virus.  It is important to note that It doesn’t matter that the nurse cannot identify a specific person at work whom she cared for who was proven to have the virus. 

• Question 9: Given that tens of thousands of employees are now working from home in New Jersey due to state and federal guidelines, what if an employee gets injured at home and files a workers’ compensation claim?

• Answer: Case law in New Jersey is fairly sparse on home injuries, but it is clear that courts recognize certain home injuries as compensable when an employee is approved to work at home. At this very moment, perhaps a majority of New Jersey workers have been approved to work at home during this crisis. As with any other workers’ compensation claim, the employee has to show that the injury occurred during the course of employment and arose from the employment. For example, if a teacher is teaching students at home online and reaches for a textbook, only to fall and fracture his arm, that would be a compensable injury, just as it would be in school. But if the teacher went out to get the mail and slipped on the driveway, fracturing his arm, the employer would properly deny that claim as not arising from work. Each case will be fact sensitive. Employers should designate the area where employees are approved to work, be it a home office or some other location.

These are just some of the many questions that readers have posed in recent weeks. We invite any and all scenarios from interested readers.

By John H. Geaney

Courtesy of New Jersey Workers' Comp Blog

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