Kids are headed back to school. Casinos are open. Gyms are open. And long-awaited indoor dining is finally here. According to Gov. Phil Murphy, it’s because hospitalization rates are down and the re-transmission rate is under 1. It’s great news that life is slowly getting somewhat back to normal.
And yet, the emergency public health order remains in effect. Which means under the terms of legislation currently on the governor’s desk, any employee currently working at an “essential business” who contracts COVID-19 will be presumed to have caught it on the job. This presumption legislation is simply illogical and should not be signed as-is.
There has been a lot of political pressure on the governor to permit wider reopening, but based on what we know about the virus, he may have been right to have proceeded with caution on reopening indoor restaurants and gyms. COVID-19 is a respiratory virus spread primarily by aerosolized droplets. That’s what’s made masks and other protective barriers so effective in preventing transmission. But it’s also what has created particular challenges for these later businesses to reopen. You can’t wear a mask while eating. And there have been a few “super-spreader” incidents suggesting that forceful breathing, as with singing or exercising, increases the potential for transmission.
But having recognized the enhanced risk of these particular settings, how exactly does Murphy nevertheless sign the presumption legislation as drafted?
The bill was drafted in March and introduced in early May when the stay-home order was still in effect. Sponsors have indicated they wanted to “support” the frontline workers who “stepped up” when everyone else was staying home. And there was some intuitive appeal to the presumption. With everything else shut down, where else could these employees have caught the virus?
But as normal life in New Jersey has resumed – non-essential retail, hair salons, indoor and outdoor restaurants – that intuitive justification for a presumption of on-the-job transmission has steadily eroded. With this latest batch of reopenings, we are left with a pure legal fiction at odds with observable reality.
People can visit the gym regularly, dine indoors at their favorite restaurants, drink at their favorite bars – and even go to casinos – all with no mask. But if they are also stocking shelves overnight at their local grocery store or working as a cashier – with masks required for everyone in the store and a Plexiglass shield – they will be presumed to have caught the virus on the job under this pending legislation.
But with everything Murphy claims to know about the virus and its transmission, he can’t have it both ways. He can’t reopen everything and still pretend that “essential businesses” – with all their protective equipment and protocols – are the presumptive locus of COVID infection in the state.
This legal fiction of on-the-job infection is not just contrary to available data, it’s also unnecessary. Advocates have been strangely ill-informed about the available programs, claiming workers who develop COVID-19 are “falling through the safety net.” From the beginning of the pandemic, anyone who is unable to work for a COVID-related reason is eligible for federal benefits that exceed what an employee would receive under workers’ compensation.
Shifting workers from these federal programs to state-based workers’ compensation places an additional burden on New Jersey businesses and taxpayers, all to ensure a lower level of benefit for affected employees.
If Murphy is truly guided by facts and science, as he says he is, then he will veto this bill. There is simply no data to support a presumption that workers are contracting COVID-19 on the job, particularly as life returns to (almost) normal in New Jersey. This legal fiction is bad policy, and it will be New Jersey businesses, consumers and taxpayers who will pay the price.
Alida Kass is the president and chief counsel of the New Jersey Civil Justice Institute, a business advocacy group.