Posts by Albert Talone

Few, if any, employers will compensate an employee for the cost of commuting to and from work. By the same token, workers’ compensation law does not require employers to cover injuries sustained during routine travel to and from the workplace.

This is known as the “going and coming” rule. Yet there are many exceptions to this rule, and it’s important to understand when one of those exceptions may apply to you. 

Exception #1: The Special Mission Exception

Workers’ compensation covers any time the employer requires you to be away from the conventional place of employment, including work travel. It also covers any time you are actively engaged in the performance of employment duties while you are traveling. 

Exception #2: The Travel Time Exception

You receive coverage any time you are:

• Paid for travel time to and from a distant job site
• Are using an employer-authorized vehicle while on business authorized by the employer
• Travel in employer-sponsored rideshare or vanpool.

You are covered if you work outside of the office and must travel throughout your day. Examples include home services professionals who visit homes and businesses to make repairs or outside salespeople who must visit prospective homes or offices to make sales. Employees in this circumstance can take normal work breaks without losing their ability to gain compensation but can’t run personal errands. 

Some employers offer employees compensation for gas, tolls, and wear and tear on the vehicle as a benefit. The 2008 case Scott v. Foodarama Supermarkets established …

For an injury to qualify for workers’ compensation benefits, the injury must occur during the “course and scope” of employment.

New Jersey law doesn’t require employers to offer meals or rest breaks of any kind. 

In many cases, simply being on the job or at the employer’s place of work will not be enough to establish workers’ compensation benefits, but it depends.

On Break On the Job 

The minor deviations rule holds that an employee is not ineligible for compensation simply because you:

“Stopped work to have a smoke, or get some fresh air, or use the telephone, or satisfy other human needs incidental to being at the place of employment. It is clear that injuries that occur during such minor deviations are generally sufficiently related to the employment to call for compensation. Similarly, employees may stop work to satisfy their interest in a passing parade, a strange object, or their curiosity generally. So long as the deviation is minor, it should be disregarded.” 

Thus, if you’re taking a minor break on-premises or are eating lunch on your desk or in the break room during paid time, you will often receive workers’ compensation. The same is true if you receive the unpaid time, remain on the customer’s premises, and are engaged in a customary activity that your employer encourages or benefits from. 

However, you won’t be covered for your lunch break if you take a customary unpaid lunch break away from the premises.   

Off-Premises Personal Errands

If you’re injured …

You aren’t required to purchase workers’ compensation insurance coverage if you are a sole proprietor with no employees or a freelancer. 

Nevertheless, some New Jersey insurance companies will sell you a workers’ compensation policy. It’s usually a good idea to procure one, as a self-employed worker can get hurt on the job as easily as an employee can.

As soon as you hire your first employee, you must obtain workers’ compensation insurance, even if your employee only works part-time.  

Caveat: Make Sure You Are a Gig Worker

It is vital to understand your status. If you are classified as an independent contractor but serve one employer, you may be eligible for workers’ compensation through that organization.

In the 2002 New Jersey Supreme Court case, East Bay Drywall, LLC, v. Department of Labor and Workforce Development develops a three-prong test to determine whether you are an employee or an independent contractor.

1. Whether you are under the direction and control of the employer.
2. Whether your work is outside the usual course of business for which the service is performed.
3. Whether you’re customarily engaged in an independently established trade, occupational, profession, or business.

If you have multiple clients, you’re probably an independent contractor. If you have just one, you may be an employee. If you are doing web design for a construction company, you may be an independent contractor. You may be an employee if you’re doing construction for a construction company. 

How much does workers’ compensation insurance cost?

If you need …

Some workers’ compensation claims proceed rather routinely. The claim gets paid, the worker returns to work, and everyone is happy. 

Routine claims are most likely when injuries are minor and when long-term disability isn’t an issue. 

You may hope you have a routine claim and can maintain a good relationship with your employer. You might be reluctant to hire a workers’ compensation attorney or to jump the gun too soon.

So while many workers’ compensation lawyers would tell you to secure representation as soon as you’re injured, we understand the reluctance. Instead, we’ll give you several “point of no return” moments that tell you you will need an attorney. 

#1) The employer tries to claim the injury didn’t happen at work.

Claiming the injury didn’t happen at work means the employer is trying to claim they aren’t responsible for it, and workers’ compensation shouldn’t cover it.

You will need an attorney to provide the appropriate evidence and to demand your employer meet their obligations. 

#2) The workers’ compensation insurance company denies the claim.

Workers’ compensation insurance companies are like any other insurance company. They are looking for reasons to deny every claim they get. They want to sit back and suck up premiums without paying a single claim. 

Fighting these companies yourself is almost always a losing battle. A workers’ compensation attorney can help eviscerate all their bogus denial reasons and get your claim back on track.

#3) A pre-existing condition complicates your claim. 

New Jersey law says workers’ …

According to the National Domestic Workers Alliance, 23% of domestic workers report being injured on the job. Caring for babies and cleaning a house comes with its own set of hazards. Repetitive stress injuries are common, too: we see many domestic workers come in with musculoskeletal pain thanks to the backbreaking labor they’re subjected to. 

In New Jersey, domestic workers have the same rights as other workers. That means they’re eligible for New Jersey minimum wage and workers compensation protections if injured on the job.

Casual, part-time babysitters are the only exception to this rule. “Domestic workers”  means nannies, home health care workers, au pairs, butlers, and housekeepers.  The law covers live-in workers as well. 

The law even requires employers to schedule regular paydays at least twice a month. If you’re on duty for more than 24 hours. In that case, you must be paid for all that time, including sleep and meal periods, unless you and your employer make an agreement, the employer provides adequate sleeping facilities, and you can get an uninterrupted five hours of sleep every night.  

Employers must keep detailed records of payments and hours worked. They may not pay you “under the table” or in cash, two situations that can make it difficult for a domestic worker to prove they had a job, were injured on that job, and were eligible for coverage. 

Your employer must obtain workers compensation coverage as soon as they hire you.  They must do this even if you …

Recently, American Airlines made news for retaliating against flight attendants for reporting worker illnesses from jet fuel fumes seeping into the cabin. They now face penalties. 

Employers often try to put their heads in the sand regarding workplace health and safety problems and are incentivized to try to ignore worker injuries wherever possible. Yet doing so is against the law. 

You’re responsible for reporting a workplace injury to your employer. Your employer is responsible for contacting the workers’ compensation insurance company. 

Under New Jersey Law, the employer must file a First Report on Injury with the New Jersey Division of Workers Compensation within 21 days of your accident. Yet some employers balk at fulfilling this duty.

Employer Disputes the Injury

Some employers refuse to file injuries because they claim you weren’t injured or the injury has nothing to do with work. 

You should immediately contact a New Jersey workers’ compensation lawyer when this happens. This is one of the few times you need to involve an attorney immediately to protect your rights. 

Once you’ve attained an attorney, your lawyer can directly contact the workers’ compensation insurance company to file a claim. Involving an attorney means they’ll take you seriously. If you try to file on your own, workers’ compensation will likely deny or even ignore the claim. 

Employer Has No Insurance

Some employers violate the law by refusing to pay for workers’ compensation insurance. They may face legal problems as a result, but you still have options for accessing benefits. …

While workers compensation is required to cover 100% of the costs associated with healing any injury you took on the job, they are not required to cover you when you get sick with Covid-19, need preventative care, or need to manage other ongoing conditions, like diabetes. Those expenses must either be paid out-of-pocket or handled by your health insurance provider. 

49% of workers are solely reliant on their jobs for health insurance. 

It’s natural to wonder how your workers compensation case might impact your access to health insurance for issues other than your work-related injury. 

Unfortunately, New Jersey doesn’t offer any protections to employees who want to keep their benefits while receiving workers compensation. You can protect your coverage for twelve weeks with the Family and Medical Leave Act, which gives you twelve work weeks of federally protected leave. 

You may also be able to continue your health benefits through COBRA, though few people can afford COBRA premiums while living off of temporary disability benefits.

Some of our clients have had luck finding plans on the Health Insurance Exchange or have been able to apply for Medicare as they’ve recovered. 

Many employers opt to simply continue your coverage while you’re recovering, especially if they value you as an employee and believe you’ll recover fully. Employers who think you’ll be able to return to valuable work might be more inclined to leave your benefits alone. 

Your employer’s internal policies will help determine whether you continue to receive benefits such …

This year, three workers died in an Amazon facility here in New Jersey, leading to a rush of OSHA investigations. Some places are inherently dangerous. Every year, 70 to 80 people die on the job in New Jersey.

While these numbers may seem low, they are devastating to the families who are left behind, especially if the deceased worker was the primary breadwinner for the family.  The surviving, actively married spouse of a worker who died on the job may thus claim benefits, as may a dependent child who lived in the worker’s household, or full-time dependent children under the age of 23. Severely mentally or physically disabled children may also apply.

What do death benefits cover? 

These benefits cover the following:

• Weekly payments of 50% to 70% of the deceased worker’s wages for 450 weeks, to a maximum of $969. The percentage depends on the number of dependants. 
• Funeral expenses of up to $3,500.
• All medical bills incurred from the accident, as, sadly, some workers receive medical care and then die anyway. 

While most people cannot solely survive on these benefits they can go a long way towards keeping a family afloat while they seek their own employment or make their own arrangement. If your spouse had a life insurance policy you’ll generally receive funds from that policy as well. 

How to Claim Death Benefits

You should work with your spouse’s former employer to file the appropriate forms with the Workers Compensation insurance carrier. The insurance …