Written by Jessica Gorman, Esq.
Edited by Bob McAdam, Esq.
Certain employees may now be able to establish compensability of COVID-19 claims. On Saturday, February 27, 2021, the General Assembly passed two bills making it easier for certain employees, such as health care providers and first responders to claim workers’ compensation for contracting COVID-19 on the job. The two bills considered and passed are as follows:
HB 1985 Workers’ compensation; presumption of compensability for COVID-19.
Workers’ compensation; presumption of compensability for COVID-19. Establishes a presumption that COVID-19 causing the death or disability of health care providers is an occupational disease compensable under the Workers’ Compensation Act. The bill provides that the COVID-19 virus is established by a positive diagnostic test for COVID-19, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical treatment. The bill provides that such presumption applies to any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after March 12, 2020, and prior to December 31, 2021, the claimant received a positive diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment. The bill provides that such presumptions do not apply to any person offered by his employer a vaccine for the prevention of COVID-19 unless the person’s physician determines in writing that immunization would pose a significant risk to the person’s health.
Under this bill, all health care providers are afforded coverage of the presumption under the Act. In order to qualify for the presumption under this bill, it would require (1) a positive diagnostic test to reflect the COVID-19 diagnosis; (2) evidence of the incubation period consistent with COVID-19; and (3) medical evidence to establish the reports of symptoms of COVID-19 necessitating medical treatment.
Additionally, for these health care workers, the allowance of claims are to be retroactive to March 12, 2020.
It is our understanding that the final bill is limited to providers directly involved in “diagnosing or treating” COVID-19 patients. Also it doesn’t apply to workers who refuse a COVID-19 vaccine unless a physician rules that it would jeopardize their health.
This limitation imposed was based upon concern over a financial burden that would otherwise be imposed on both employers and employees should all claims be made retroactive. It would essentially allow additional employees, who have not yet asserted claims, to come out of the woodwork – should they qualify under the terms of these bills.
The second bill (of which both the House and Senate presented identical bills), specifies certain classification of employees (not just health care providers) who would benefit from the presumption and coverage for development of COVID-19. The bills read as follows:
SB 1375 Workers’ compensation; presumption of compensability for COVID-19 (which is identical to one presented by the House HB2207)
Workers’ compensation; presumption of compensability for COVID-19. Establishes a presumption that COVID-19 causing the death or disability of firefighters, emergency medical services personnel, law-enforcement officers, correctional officers, and regional jail officers is an occupational disease compensable under the Workers’ Compensation Act. The bill provides that such presumption applies to any death or disability occurring on or after September 1, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after September 1, 2020, and prior to December 31, 2021, the claimant received a diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment. This bill incorporates SB 1342. This bill is identical to HB 2207.
As you can see, the employees specifically listed under this bill includes not only medical providers but also first responders, correctional officers and regional jail officers. This bill is different in that it also limits the time period for which claims could be asserted to September 1, 2020. This evidence required to support a claim include: (1) a diagnosis of COVID-19 by a licensed physician AFTER a presumptive positive test or lab confirmed test; and (2) symptoms consistent with COVID-19 that required medical treatment. This bill does not specifically require the specified incubation period listed by HB1985. This bill also does not appear to provide the exclusion of presumptive coverage for those who refuse vaccination.
Now that these bills have been passed, it is going to make the defense of COVID-19 claims more challenging and will likely provide compensability and coverage for thousands of healthcare workers by expanding and classifying COVID-19 as an occupational disease. With an expansion of the occupational disease definition and statute, this will then shift the burden of proof to the Employer/Carrier to prove that it was not contracted at work. However, which bill will be enacted has yet to be determined. These bills now go to go to the Governor to make the decision as to what expansion of coverage will be allowed moving forward. As such, I anticipate any decision will be made and go into effect not later July 1, 2021. We will continue to keep you apprised of any new developments and will let you know as soon as the new law and/or change to the occupational disease statue will effective. In the meantime, we suggest that you should continue to deny those COVID-19 claims coming across your desk.