In very recent days, some states have made it easier for certain workers who have contracted COVID-19 to establish a claim for workers’ compensation by creating presumptions that workers contracted the disease on the job.
Yesterday, April 22, 2020, the U.S. Chamber of Commerce (the “Chamber”) sent a letter to California Governor Newsom addressing concerns about the scope of coverage and payments to be made under the workers’ compensation system that may result from such presumptions. Specifically, the Chamber has taken the position that workers who wish to assert a claim should seek relief through the federal Pandemic Unemployment Assistance program rather than the workers compensation system. However, to the extent that workers seek to assert their claims through the workers’ compensation system, any administrative or legislatively created presumptions that workers contracted COVID-19 on the job should be limited to front-line healthcare workers, first responders, and state employees who are required to interact with the public- rather than workers in all industries deemed to be “essential.” The Chamber further explained that the duration of any presumption should be limited to the executive stay at home orders, should only apply to temporary total disability provision to the extent that the exposure is truly occupational, and any workers’ compensation recovery should be offset by state and federal paid leave. The letter can be viewed here.
Kentucky
In Kentucky, Governor Beshear issued an Executive Order that it is “presumed that removal of the following workers from work by a physician is due to occupational exposure to COVID-19”:
- Law enforcement
- Emergency medical services
- Fire departments
- Corrections officers
- Military
- Activated National Guard
- Domestic violence shelter workers
- Child advocacy workers
- Rape crisis center staff
- Department for Community Based Services workers
- Grocery workers
- Postal service workers
- Child care workers permitted to continue work during crisis
Illinois
Illinois passed an emergency amendment to their rules of evidence for matters before the workers’ compensation commission that creates a rebuttable presumption that a first responder, front line workers, or crucial personnel who contracts COVID 19 caught the virus at work. Specifically, if a worker’s injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus since implementation of the Gubernatorial Disaster Proclamation issued on April 1, 2020 (which currently expires on May 1, 2020) and continuing during any subsequent COVID-19 disaster proclamations, then “the exposure will be rebuttable presumed to be causally connected to the hazards or exposures of the worker’s COVID-19 First Responder or Front-Line Worker employment.”
“COVID-19 First Responder or Front-Line Worker” are defined to include “police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, correction officers” and certain “crucial personnel” identified in the Executive Order 2020-10. Such crucial personnel include workers in the following areas:
- Stores that sell groceries and medicine
- Food, beverage, and cannabis production and agriculture
- Organizations that provide charitable and social services
- Media services
- Gas stations and businesses needed for transportation
- Financial institutions
- Hardware and supplies stores
- Critical trades
- Mail, post, shipping, logistics, delivery, and pick-up services
- Educational institutions
- Laundry services
- Restaurants for consumption off-premises
- Supplies to work from home
- Supplies for Essential Businesses and Operations
- Transportation
- Home-based care and services
- Residential facilities and shelters
- Professional services
- Day care centers for employees exempted by executive order
- Manufacture, distribution, and supply chain for critical products and industries
- Critical labor union functions
- Hotels and motels
- Funeral services.
California
The California State Compensation Insurance Fund (“State Fund”), a workers’ compensation insurance fund established by the state, relaxed the causation standard for workers compensation coverage for “essential workers” diagnosed with COVID-19 “regardless of whether or not that worker can demonstrate the virus was contracted during the course of employment.” The State Fund notes that “the diagnoses must include a confirmed positive test for COVID-19 and must occur during the period of time between when the Governor issued his stay-at-home order (March 19, 2020) and before that order is lifted.” As of the date of is article, the stay-at-home order has not been lifted.
The State Fund defines “essential workers” as workers defined in the Governor’s Executive Order N-33-20, which identifies workers in the following federal critical infrastructure industries:
