NJCPA Voices Concerns About COVID-19 Workers' Comp Bill

 – June 19, 2020
NJCPA Voices Concerns About COVID-19 Workers

The New Jersey Society of CPAs on June 18 sent the following letter to members of the New Jersey Assembly to voice significant concerns about a bill that would create a rebuttable presumption for workers’ compensation insurance purposes that certain essential employees contracted the virus during their employment.

To: Honorable Members of the New Jersey Assembly

Re: A-3999 — Concerns Employment Benefits and Coronavirus Disease 2019 Infections Contracted by Essential Employees

On behalf of the 14,000 members of the New Jersey Society of CPAs (NJCPA), we want to make you aware of significant concerns we have with A3999. This bill would create a rebuttable presumption for workers’ compensation insurance purposes that certain essential employees contracted the virus during their employment. 

We wholeheartedly appreciate the need to ensure that front-line workers who have contracted COVID-19 receive the benefits that they need to make them whole. We have significant concerns, however, with using the workers’ compensation system as the primary method to provide these benefits. We believe that the cost of these claims can overwhelm the system, which was not designed to handle claims during a worldwide pandemic, and that the costs will be pushed back onto the business community, which is also struggling to survive.

Workers’ compensation benefits are, by law, an injured worker’s exclusive remedy for workplace injuries. Therefore, this legislation will only serve to shift the cost of the pandemic response to New Jersey’s workers’ compensation system and the essential businesses paying premiums for this insurance.

There is federal Pandemic Unemployment Assistance (PUA) funding for employees who are unable to work due to COVID-19 related reasons, but who nevertheless remain employed. Those PUA payments would be reduced by the amount the employee received from workers’ compensation. The U.S. Department of Labor has confirmed its interpretation on both points.

COVID-19 medical costs are also addressed by recent federal legislation. The new Health and Human Services portal is now covering any expenses for COVID-19 testing and treatment for anyone who lacks health insurance coverage. Healthcare providers treating uninsured patients can submit their expenses to the U.S. Department of Health and Human Services to receive reimbursement. Using New Jersey’s workers compensation system to address these costs would provide no extra aid to workers, but would shift these costs to New Jersey employers, effectively leaving federal dollars on the table. To the extent there were gaps in health insurance coverage for front-line retail employees, the federal government has taken that on too.

Because existing federal programs are already addressing the immediate needs of workers, we believe now is not the time to enact a program that would displace otherwise available federal dollars. This is especially true given the fact that Congress is currently negotiating an additional worker benefit package.

However, if legislators choose to move a bill now, despite the availability of federal funding that may be lost, please be aware that we also have particular concerns about some specific provisions in the legislation, including but not limited to the following:

  • Definition of Essential Employee: An “essential employee” is not clearly defined.
  • Theory of Exposure: A claimant should have some credible reason to believe the exposure occurred at work. Data coming out of a New York study suggests lower infection rate for some front-line workers than the public at large – perhaps due to better protective equipment and safety protocols.  For the presumption of causation to make sense, there should be some basis for it. Close interaction with customers and no known exposure in any other context would suffice to establish the presumption, but the claimant should have some articulable basis.
  • Duration of Rebuttable Presumption: As the existing stay-at-home order is loosened by subsequent executive orders, permitting more opportunities to interact with other people outside of the home, the basis for the presumption will be significantly weaker. Already, there is emerging data revealing that the vast majority of newly hospitalized COVID-19 patients are getting the virus not from work but from being at home. Because the virus is so new, perhaps we don’t yet have a complete scientific understanding of its transmission.
  • Not to Be Used in Other Liability Contexts: Whatever the policy rationale for a rebuttable presumption to facilitate no-fault workers’ compensation payments to essential employees, the same is not true for other tort actions that might be brought for COVID-19 injuries. The legislation should specify that the presumption shall not be used to establish liability in any other context.