OPINION: Reciprocal treatment

While cases of COVID-19 have increased in the last few weeks, New Jersey continues to remain open for business since Gov. Phil Murphy lifted the state’s stay-at-home order in June. In the last three months, Governor Murphy has allowed indoor dining at 25% of capacity, opened gyms and fitness centers, and even allowed close contact sports to resume.

Most importantly, the governor recently stated that even in light of the recent uptick in cases, he does not anticipate shutting the state down again, saying that private indoor gatherings have been the most significant driver of increased cases. This is extremely encouraging for our state’s economy and employer community. However, as society continues to remain open during the pandemic, even as cases are on the rise, there is one unknown that hangs over every business in the state. What liability does a business have if someone alleges they caught COVID-19 at their establishment?

Since June, bills sponsored by state Sens. Patrick Diegnan, D-18th Distrtict, and Vin Gopal, D-11th District, and Assemblymen Roy Freiman, D-16th District, and Eric D-11th District, have been pending in the Legislature that would answer that question with predictability and certainty. It is now time for lawmakers to consider and pass a business liability protection bill, especially in light of how they have established a presumption law that all essential employees contracted COVID-19 at work.

Earlier this year, the Legislature amended New Jersey workers’ compensation law to presume any essential worker who contracted COVID-19 contracted it at work and made the presumption retroactive to March 9, 2020, the date the governor declared the COVID-19 public health emergency. The business community objected, not to taking care of our employees, but to the manner in which the Legislature was proposing the presumption. There were already existing federal CARES Act monies that were more generous and could fill whatever void there might have been for workers too sick to work, or who had to seek medical treatment for COVID-19 related issues.

After the bill passed the Senate in mid-May and before it was considered by the Assembly at the end of July, the business community modified our request to simply ask that the presumption be terminated effective June 25, 2020. If the governor was comfortable based on the data he is driven by to lift the stay at home order June 9, 2020, and the incubation period for COVID-19 is two weeks, then certainly a termination of the presumption was warranted. By this time there were already outbreaks due to parties varying from graduations, to house parties with hundreds of people, to lifeguards on Long Beach Island.

Yet, if someone was an essential employee and contracted COVID-19 based on their irresponsible personal behavior in violation of the governor’s executive orders on gatherings and social distancing, their employer would be held liable. The request to terminate the presumption was not accepted and Gov. Murphy signed the presumption bill into law in mid-September.

If it can be presumed an employee contracted COVID-19 at work, even though there are countless other places where they could have contracted it, what is stopping an enterprising plaintiff from asserting they caught it there also?

Opponents will say there hasn’t been an avalanche of lawsuits and liability protection therefore is not needed. That’s the same argument the business community used regarding the presumption bill, and in that instance essential employees were never going to be left stranded, it was just a question of from what source their needs would be met. In this instance, businesses that are already foundering from the shutdown are exposed, even if they take every proactive measure outlined by the federal and state governments.

Unfortunately, the likelihood of equitable treatment for businesses is headed in the wrong direction.
There have been no hearings on any of the business liability protection bills. The most recent legislative pronouncement is a bill that would give liability protection to businesses, but only for employers in certain covered industries who opt-in to a program that requires a $3/hour pay increase. And unlike the presumption bill, which was signed Sept. 14 and retroactive to March 9, there is no retroactive protection included.

The Legislature has established the precedent of protecting employees against what might happen as it relates to COVID-19. As many employers struggle to keep their doors open in the wake of the pandemic, the business community believes that the time is now for that principle be reciprocated.

Eric DeGesero handles government affairs for The New Jersey Civil Justice Institute. The organization’s mission is to promote a fair and predictable civil justice system, and defend the value of the rule of law in protecting innovation and fostering economic growth.