Signed into law on January 10, 2022, New Jersey S771 expands employer liability in parking lot injury cases.
S771 amends Section 36 of the New Jersey Workers’ Compensation Act to include employee injuries that take place in employer-provided parking areas and during trips directly to/from employer-provided parking.
This is an important change from a previous New Jersey Supreme Court decision finding an employee injured on a public street while travelling from off-site parking provided by the employer to the worksite was not compensable.
On a cold January morning, New Jersey Gov. Phil Murphy trudged through the snow-covered statehouse parking lot and, with one swipe of his pen, shifted the landscape for injuries that occur in employer parking lots. On January 10, 2022, Gov. Murphy signed S771 into law, expanding workers’ compensation liability in parking lots. S771 amends Section 36 of the New Jersey Workers’ Compensation Act as follows:
Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.
Prior to this amendment, an injury was only compensable under workers’ compensation if the employer owned or controlled the parking lot, or directed the employee where to park. This amendment expands those principles in two main ways.
First, an employer will be liable if it “provides” a parking area and the injury occurs in that parking area. The term provides is somewhat ambiguous and will certainly lead to creative arguments from petitioner and respondent attorneys as to whether an employer provides the parking. For instances, if an employer leases an office that contains access to a parking lot, is that providing a parking area? In the past, the analysis would focus on whether the employer had control over that lot. With this amendment, petitioner attorneys will certainly argue that when an employer provides an office space with a parking area, it is also providing the parking area. To the contrary, respondent attorneys will argue that an employer can only provide what it owns and/or controls and, if it does neither, it does not provide the parking area.
Second, the amendment makes clear that if an employee parks at an offsite parking area provided by the employer and is injured while travelling directly from that area to the place of employment, that injury will be compensable. A prior 2014 New Jersey Supreme Court decision, Hersch v. County of Morris, 217 N.J. 236 (2014), found that an employee injured on a public street while travelling from off-site parking provided by the employer to the worksite was not compensable. This amendment essentially overturns that decision.
This amendment, in conjunction with a recent unpublished Appellate Division decision, makes clear that the New Jersey Legislature and the courts are showing a willingness to expand liability in parking lot cases.