The New Jersey Workers’ Compensation Statute finds an injury compensable when it arises out of and in the course and scope of employment. “Arise of out” refers to causation. The New Jersey Supreme Court created a “but-for” test in analyzing whether the injury “arose out” of the employment. The court specifically developed a two-step approach in applying the “but-for”  test.21 The first is establishing the positional relations of the employment to the injury. The second is determining the nature  of the risk involved.

Establishing the positional relations of the employment to the injury requires asking the question of “whether it is more probably true than not that the injury would have occurred during the time and place of employment rather than elsewhere.” Determining the nature of risk involved requires the consideration of three categories of risks that may arise in the workplace. The first two risks will result in compensable injuries. These are industrial risks which are clearly compensable when they occur at the place of and during the hours of employment, and neutral risks, which “may be defined as uncontrollable circumstances which do not originate in the employment environment but which happen to befall the employee during the course of his employment. The third category of risks “do not bear a sufficient causative relation to the employment and …  may not be said to arise out of the employment.” These risks have been denominated as those personal to the claimant.

In the case of the COVID-19, a claimant would have to show that it is more probably true than not that they would have contracted the coronavirus at work than anywhere else, and show the risk of the employment for contracting the coronavirus falls in the first two “risk” categories discussed above. This is a very high and difficult standard for most employees to prove.

21  Howard v. Harwood’s Rest. Co., 25 N.J. 72 (1957).

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