New Jersey Creates Rebuttable Presumption of Workers’ Compensation Coverage for COVID-19 Cases Involving “Essential Employees”

On September 14, 2020, Governor Murphy signed SB 2380 into law, which creates a rebuttable presumption of workers’ compensation coverage for “essential employees” who contract COVID-19 during a state of emergency.  The law is retroactive to March 9, 2020.

Pursuant to the law, an “essential employee” is “an employee in the public or private sector, who, during a state of emergency: (1) is a public safety worker or first responder, including any fire, police or other emergency responders; (2) is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in health care facilities, residential facilities or homes; (3) performs functions which involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare, including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home; or (4) is any other employee deemed an essential employee by the public authority declaring the state of emergency.”

Under this law, if an essential employee contracts COVID-19 while “working in a place of employment other than the individual’s own residence . . . there shall be a rebuttable presumption that the contraction of the disease is work-related and fully compensable” for workers’ compensation benefits.  An employer may rebut the presumption “by a preponderance of the evidence showing that the worker was not exposed to the disease while working in the place of employment other than the individual’s own residence.”

This law is a mixed bag for employers in the State of New Jersey.  Indeed, it is likely that the law will insulate employers from liability for lawsuits filed by employees alleging that the employer is responsible for their COVID-19 diagnosis (due to the exclusive remedy for employees seeking relief under the New Jersey Workers’ Compensation Act).  Conversely, it is likely that there will be a significant increase in the number of workers’ compensation claims filed by employees.  Accordingly, the law clearly expands the scope of eligibility and coverage for workers’ compensation benefits, which is beneficial for employees in the State of New Jersey.  In light of the above, the impact of this law on the number of workers’ compensation claims filed by employees in the State of New Jersey should be interesting to monitor in the upcoming months.

*  Frank A. Custode, Esq. is a Partner at Curcio Mirzaian Sirot and the Chair of the Firm’s Employment Practice.

“Training Module” Arbitration Policy In New Jersey Law Against Discrimination Matter Approved By Supreme Court

In the recent decision of Skuse v. Pfizer, Inc., et al., (Docket No. A-86018, 082509, decided on August 18, 2020), the New Jersey Supreme Court held that an arbitration policy that was distributed to employees via email as a “training module” was valid and enforceable.  This is an important decision for both employers and employees in the State of New Jersey.

The employer, Pfizer, Inc., emailed the arbitration policy to its workforce in what was termed a “training module.” The training module described the mandatory arbitration policy on a series of slides and asked the employees to “acknowledge” the policy by clicking an electronic button. The training module further stated that, if the employee did not click the acknowledgment and continued to work for Pfizer for at least sixty days, the employee would be “deemed” to be bound by the arbitration policy. The training module did not request that employees provide signatures conveying they agreed to the terms of the policy. Nor did the module request that the employees memorialize that they expressly agreed to the terms of policy.

Following her termination, Amy Skuse filed a lawsuit against Pfizer as well as several other individual defendants alleging violation of the New Jersey Law Against Discrimination based on religious discrimination and failure to provide reasonable accommodations for her religious beliefs. Thereafter, the defendants moved to dismiss the lawsuit and compel arbitration. The trial court granted defendants’ motion to compel. However, the Appellate Division reversed and invalidated the arbitration provision. The Appellate Division invalidated the arbitration provision which it described as “an inadequate way for an employer to go about extracting its employees’ agreement to submit to binding arbitration for future claims and thereby waive their right to sue an employer and seek a jury trial.”

The Supreme Court, however, reversed the Appellate Division’s judgment and reinstated the trial court’s Order in its August 18 decision.  Specifically, the Supreme Court held that the Agreement and related communications informed Ms. Skuse that, if she remained a Pfizer employee more than sixty days from her receipt of the Agreement, she was deemed to assent to the Agreement.  In addition, the Court determined that Pfizer’s communications with its employees clearly and unmistakably explained the rights that Ms. Skuse would be waiving, and that the use of the word “acknowledge” in this context was appropriate.  While the Court noted that Pfizer should not have labeled its communication explaining its arbitration agreement as a “training module” or training “activity,” that was not enough to invalidate the Agreement.  Accordingly, the Court found that the Agreement was valid and binding.

This is a significant win for employers in the State of New Jersey given that the decision approves an arbitration provision that did not even require the signature of its employees, thereby waiving the rights of said employees to jury trials pertaining to employment law disputes in the State of New Jersey.  Employers should review and update their arbitration provisions accordingly based on this decision.

Conversely, this decision presents an avenue for employees to seemingly unknowingly waive their right to jury trials in matters involving allegations under the New Jersey Law Against Discrimination.  Indeed, employees should not ignore policies of this nature, and should make sure they have a full understanding of their rights when presented with an arbitration provision or agreement by their employer.

*  Frank A. Custode, Esq. is a Partner at Curcio Mirzaian Sirot and the Chair of the Firm’s Employment Practice.