Thu, 07/09/2020
[07/09/2020 Update] More states have addressed the continuing impact of COVID-19 on American workers, including updating their earlier responses:
- Arkansas: On June 15, 2020, Governor Hutchinson issued an executive order classifying COVID-19 as an “occupational disease” under the state’s workers’ compensation law, and excepting it from the prohibition on compensation for the ordinary diseases of life to which the general public is exposed.
- Illinois: HB2455 became law on June 5, 2020. The law creates a rebuttable presumption of compensable injury or occupational disease for first responders or front-line workers who are diagnosed with COVID-19. However, the law permits an employer to rebut the presumption by showing compliance with applicable health and safety practices. HB2455, as enacted, is available at: https://ilga.gov/legislation/publicacts/101/101-0633.htm
- Michigan: Governor Whitmer issued Executive Order 2020-128 on June 18, 2020, creating a rebuttable presumption of compensable “personal injury” for “COVID-19 response employees,” who are confirmed as COVID-19 positive on or after March 18, 2020. The Executive Order is available here: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-532413–,00.html
- Pennsylvania: HB2485, introduced on July 1, 2020, would add COVID-19 to the list of occupational diseases under the Workers’ Compensation Act. The text of the pending legislation is available here: https://legiscan.com/PA/text/HB2485/2019
- Utah: A law enacted on June 25, 2020 modified the definition of a first responder, and moves provisions relating to coverage for first responders to the Occupational Disease Act. HB5006 is available at: https://le.utah.gov/~2020S5/bills/static/HB5006.html
With the exception of Vermont, the legislation mentioned in our May 26, 2020 update remains pending. On July 7, 2020, the Legislature delivered S. 342, relating to a workers’ compensation presumption for front-line workers, to the Governor for consideration. S. 342 is available here: https://legiscan.com/VT/text/S0342/id/2198551/Vermont-2019-S0342-Enrolled.pdf.
[05/26/2020 Update] States across the country have continued to address the impact of COVID-19 on front line workers, including:
- Alaska: On April 9, 2020, the governor signed a law establishing a presumption of compensability for emergency response and health care workers who contract COVID-19 during the public health disaster declared on March 11, 2020 during the course of their employment. The presumption is retroactive to March 11, 2020. The bill is available here: http://www.akleg.gov/PDF/31/Bills/SB0241Z.PDF.
- Arizona: The state’s Industrial Commission issued a substantive policy statement asserting that COVID-19 claims may not be categorically denied. The policy statement is available here: https://www.azica.gov/sites/default/files/SPS%20-COVID-19%20FINAL.pdf.
- Louisiana: There is pending legislation that would provide coverage for essential workers (those in public safety, government, disaster response, health care, and other industries deemed necessary for critical to the COVID-19 pandemic by their employer) who are disabled or die because of COVID-19. The proposed legislation is available here: https://www.legis.la.gov/legis/ViewDocument.aspx?d=1168160.
- North Carolina: There is pending legislation that would provide a rebuttable presumption of compensability for covered employees (including certain first responders, health care workers, and workers at essential businesses like food service and retail) who contract COVID-19 in the course of their employment. The proposed legislation is available here: https://www.ncleg.gov/Sessions/2019/Bills/House/PDF/H1056v0.pdf; https://www.ncleg.gov/Sessions/2019/Bills/House/PDF/H1057v0.pdf.
- Pennsylvania: There is pending legislation that would create a presumption of a work-related hazardous duty for “individuals employed by a life-sustaining business or occupation” (which includes, but is not limited to, first responders, correction officers, emergency services dispatchers, retail workers, food and agricultural workers, health care workers, public utility workers, trash collectors, and warehouse workers) who are required to work and contract, have symptoms of, or are otherwise exposed to an infectious disease (including COVID-19). The proposed legislation is available here: https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2019&sessInd=0&billBody=H&billTyp=B&billNbr=2396&pn=3545.
- South Carolina: There is legislation pending that would create a rebuttable presumption of compensability for first responders, health care providers, and correctional officers who contract COVID-19. The proposed legislation is available here: https://www.scstatehouse.gov/sess123_2019-2020/bills/5482.htm
- Vermont: There is legislation pending that would create a rebuttable presumption for frontline workers (including, but not limited to, fire fighters, law enforcement officers, emergency medical personnel, health care providers, correctional officers, pharmacy and retail workers, and employees in long-term care facilities) who contract COVID-19. The proposed legislation is available here: https://legislature.vermont.gov/Documents/2020/Docs/BILLS/S-0342/S-0342%20As%20Introduced.pdf.
- Wyoming: The state enacted a law that would create a presumption of compensability relating to COVID-19. The proposed legislation is available here: https://wyoleg.gov/Legislation/2020/SF1002?specialSessionValue=1.
[05/07/2020 Update] On May 6, 2020, California Governor Gavin Newsom signed an executive order creating a rebuttable presumption that workers who must work outside their homes during the state’s stay at home order and who contract COVID-19 did so at work and are entitled to workers’ compensation. The presumption applies to workers who test positive for COVID-19 within 14 days of performing work outside of their home after the state’s stay at home order was issued on March 19, 2020 and will continue for 60 days after the date of the executive order. The text of the Executive Order is available here: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.
[04/27/2020 Update] On Wednesday, April 22, the Illinois Manufacturers’ Association and the Illinois Retail Merchants Association and other organizations filed a lawsuit claiming that the new rules issued by the Illinois Workers’ Compensation Commission, which allow essential personnel including grocery clerks and nurses to collect worker’s compensation without having to show they contracted the illness on the job, overstep the state’s authority and will impose significant costs on employers. A judge block implementation of the new rules on April 24, 2020, granting the plaintiffs’ request for a temporary injunction while the parties litigate. The Illinois Workers’ Compensation Commission withdrew the new rules on April 27, 2020.
[04/22/2020 Update] Utah has passed a law add a rebuttable presumption of compensability for workers who test positive for or are diagnosed with COVID-19 while employed or shortly after serving as a first responders and health care providers. The new law is available here: https://le.utah.gov/~2020S3/bills/hbillint/HB3007S01.pdf.
[04/21/2020 Orig.] The COVID-19 pandemic has dramatically affected the national workforce by removing millions of Americans from the workplace. For those who must still report to work, new policies such as social distancing and the use of personal protective equipment have changed the way essential businesses and government services function. These policies seek to contain the spread of the COVID-19 virus and protect essential workers from getting sick.
To further protect these workers, many states are implementing new policies to ensure that workers who become sick due to COVID-19 are eligible for workers’ compensation benefits. This expanded workers’ compensation coverage is critical to ensuring that employees can remain financially secure while they recover from COVID-19. Ordinarily employees bear the burden of proving that their “workplace injury” was “caused” by their employment. Proving this may not be easy, given that COVID-19 is an airborne virus. To address this issue, some states have built in a presumption to their workers’ compensation laws that an employee’s exposure to COVID-19 was caused by their employment. This means that the employee merely has to show that they were exposed or infected with COVID-19, and the burden will be on the employer to prove that exposure was not caused by the individual’s employment.
Certain states have already implemented this rebuttable presumption (either through new legislation, regulations, or guidance) for certain categories of workers who are likely to be exposed for COVID-19. These states include Illinois, Florida, Michigan, Minnesota, Missouri, Washington, and Wisconsin. These states apply the presumption almost exclusively to first responders and front-line personnel—typically police officers, fire fighters, emergency medical technicians, paramedics, and health care providers. However, Illinois has applied the presumption more broadly to include “crucial personnel” such as employees in stores that sell groceries and medicine, organizations that provide charitable and social services, gas stations and transportation businesses, and financial institutions, among others. This application of the presumption addresses the reality of the coronavirus pandemic – that groups of workers not typically considered “first responders” are at risk for exposure to COVID-19.
More states have taken steps—such as drafting legislation—towards establishing a rebuttable presumption but have not yet implemented it. These states include New York, New Jersey, Ohio (food establishments), Massachusetts, and Utah.
Finally, certain states—such as Arkansas, North Dakota, and Kentucky—have expanded coverage to include COVID-19 but have not included a rebuttable presumption that exposure was caused by the workers’ employment.
Even in states that have not made recent changes to their workers’ compensation laws or have chosen not to adopt a new rebuttable presumption in response to COVID-19, workers’ compensation coverage still possible for employees who become ill. In Virginia, for example, there is an existing presumption that respiratory diseases for first responders are occupational diseases suffered in the line of duty. Therefore, injuries from COVID-19 are likely compensable for Virginia first responders. In the District of Columbia, no such presumption exists, but the District defines “injury” to include “such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury.” Similarly, in Maryland, “accidental personal injury” includes “a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment.” As such, all employees (including first responders) in the District of Columbia and Maryland may be able to prove entitlement to workers’ compensation benefits from COVID-19 if they can show that they were injured at work while doing regular duties.
Many states are taking steps to expand workers’ compensation coverage to account for the COVID-19 pandemic. The states implementing the strongest protections include a rebuttable presumption that an employee’s exposure to COVID-19 was caused by the individual’s employment. While this presumption is limited to traditional first responders in most states, other types of employees may nonetheless still obtain benefits by proving that they contracted COVID-19 in the course of their duties.
