With COVID-19 cases spiking again the potential for additional restrictions on economic activity are a known concern for every employer in the state. Another issue for employers, and one that they might not be aware of, is potential liability for someone contracting, or alleging they contracted, COVID-19 at their place of business.
Earlier this year, Governor Murphy signed legislation which established a presumption that all essential employees who contracted COVID-19 did so on the job. Additionally, the law, enacted on September 14, 2020 three months after the Governor lifted his stay at home order, is retroactive to March 9, 2020, the date the Governor issued the first COVID-19 public health emergency.
The business community collectively asked – if the Governor determined on June 9, 2020 that COVID-19 was no longer enough of a threat that we had to stay at home, how it can be decreed that essential employees caught the virus at work? Remember all the stories of COVID spread over the summer were from private parties, not at businesses who were following government protocols.
If it can be presumed an employee contracted COVID-19 at work, even though there were countless other places they could have contracted it, what is stopping an enterprising plaintiff from asserting they caught it there also? How does a business defend against the allegation that someone else in the household of an essential employee caught it from the essential employee and therefore the business is liable?
It is time for the Governor and Legislature to provide equitable treatment and protection for NJ businesses who are adhering to all CDC, OSHA, NJ Department of Health, NJ Department of Labor, and most recently Executive Order 192, requirements. Specifically, the Legislature should pass and Governor Murphy should sign legislation that provides business a safe harbor from COVID related lawsuits, provided they are following all government rules in a good faith manner. Fortunately, there is legislation sponsored by Senators Diegnan, Gopal and Bucco in the Senate, and Assemblymembers Houghtaling, Greenwald, Freiman, and Lopez in the Assembly that would do just that. However, the only way the legislation will have a chance of being enacted is if legislators hear from you.
Please contact the members of the New Jersey Legislature who represent you, and the towns you do business in, and ask them to request of legislative leadership that Senate Bill 2634/Assembly Bill 4440 and Senate Bill 2628/Assembly Bill 4377 be passed and sent to the Governor immediately. These bills provide business who are following the COVID mitigation mandates of federal, state, and local authorities, in good faith, protection from lawsuits.
If you do not know who your Legislators are click here. For more perspective on this topic click here.
If you wish to discuss this matter in further detail contact Eric DeGesero, EDGE Consulting, 973-464-9504 or edegesero@edgeconsultingnj.com.