New Jersey Appellate Division finds the decedent, a full-time teacher who died of COVID-19, was an essential employee.

The petitioner filed a dependency claim in which he alleged the decedent (his wife) contracted COVID-19 during the period of occupational exposure while in the course of her employment with the respondent. The decedent had been a full-time teacher for the respondent, which stopped in-person instruction due to the COVID-19 pandemic. The school re-opened on February 8, 2021, and after the decedent returned, she became ill and died on May 18, 2021, due to respiratory failure from COVID-19.

In its answer, the respondent claimed the decedent’s exposure to COVID-19 did not arrive out of or in the course of her employment. The petitioner moved for an order that the decedent was entitled to a presumption as an essential employee under N.J.S.A. 34:15-31.11 and .12, which the respondent opposed. 

The assigned judge retired, and the matter was transferred to Judge Joann Downey, whom the respondent moved to recuse. Judge Downey addressed the recusal motion, in which the respondent argued she prejudged the case as she was a member of the New Jersey Assembly and was one of eight sponsors of Senate Bill 2380, approved by the governor in September 2020, that amended the workers’ compensation statute to create the rebuttable presumption that an essential employee’s contraction of COVID-19 was work-related. The judge acknowledged her role as a legislator and indicated there was no undue prejudice or potential bias. 

The respondent argued on appeal that the judge should have granted the recusal to avoid the appearance of bias; however, the Appellate Division disagreed, noting a judge who formerly sponsored a bill was not per se disqualified from cases involving that law. Rather, a judge would have to determine if a reasonable person would doubt the judge’s impartiality. In this case, the Appellate Division noted that Judge Downey did not abuse her discretion in not recusing herself. The Appellate Division also rejected the respondent’s argument that the judge could be called in as a witness, indicating they were not interested in one legislator’s belief of a correct interpretation of a statute.

For the order finding the decedent was an essential employee, Judge Downey reviewed the governor’s executive orders and guidance from governmental entities on who qualifies as an essential employee, which includes teachers. Based on same, she found the decedent was an essential employee. 

The respondent appealed, arguing the statute did not specifically or implicitly include teachers as essential employees. The Appellate Division disagreed, noting the respondent disregarded section (4), which extended the definition to include “any other employee deemed an essential employee by the public authority declaring the state of emergency.” It was noted that teachers were deemed essential employees. 

The respondent also argued the petitioner’s motion lacked any evidence as it only included the attorney’s certification; however, the Appellate Division noted this motion only sought a declaratory judgment on a limited issue and that it was undisputed the decedent was a full-time teacher for the respondent. 

The Appellate Division ended by observing the presumption that the decedent contracted COVID-19 while working was rebuttable, notwithstanding the judge’s declaratory finding. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}