It is becoming increasingly clear that the future of COVID-19 litigation will be fought over presumption laws. In a typical workers’ compensation case, the claimant bears the burden of demonstrating a causal relationship between the injury and their occupation. COVID-19 is not a typical case. The nature of the disease, as well as inconsistent testing and documentation, renders contact tracing an uphill battle for the average American. As a result, it remains extremely difficult, and at times impossible, to prove when and where the disease was contracted.

In response, both the states and federal government have turned to presumption laws to overcome this obstacle. Though the laws vary by state, they all take the same general approach: if a worker tests positive, it is presumed to have been contracted at work.

At least seventeen states have adopted, or are considering, such presumption laws. In Pennsylvania, the state legislature has already sent two bills to the House of Representatives Committee on Labor and Industry for review. House Bill 2485 would create a presumption of work-relatedness and classify COVID-19 as an occupational disease for healthcare providers responsible for providing in-person care to patients involving exposure to COVID-19. On its face, this bill only applies to employees of health care providers. In addition, this presumption is rebuttable; an employer can defeat the presumption by presenting evidence that the disease was not contracted at work.

House Bill 2396, on the other hand, would have a much larger impact on the state. This bill would create an irrebuttable presumption for a wide array of workers in 14 different classes. In addition to the typical first responders one might expect, this bill also affords a presumption to retail workers, agricultural workers, those in the foodservice industry, warehouse workers, governmental employees, and any other employees working in a "life-sustaining business.” This is an extremely broad class of workers, and because the presumption is irrebuttable, an employer of any of these COVID-positive employees becomes automatically liable for workers’ compensation benefits. In effect, this bill obviates the need for medical evidence and shifts the cost of the pandemic onto Pennsylvania employers and their workers’ compensation carriers.

While neither bill has been signed into law, the federal government has passed a law that complicates this entire discussion. The federal government recently passed the Safeguarding America’s First Responders Act (SAFRA) on August 18, 2020. Admittedly, this law applies to a very specific, and relatively small, group of workers, i.e., those first responders eligible for benefits under the Public Safety Officer’s Benefit Program. With that said, under the doctrine of federal preemption, the passage of this law raises a very real concern that the federal presumption in SAFRA also applies in state workers’ compensation proceedings.

The analysis of this question is complicated. In its simplest form, however, the question boils down to intent: did the federal government intend to afford all workers in all states a presumption that their COVID-19 disease was contracted at work? The text of the SAFRA is clear and suggests that the answer is no: “The purpose of this Act is to establish a carefully drawn framework wherein claims under the Public Safety Officers' Benefits program, arising under the unique circumstances described in subsection (a), can be processed expeditiously and under fair and clear standards.” This law, as written, is narrow and only applies to a limited number of employees applying for benefits under a relatively small federal program. There is no mention of state laws, nor any mention of workers’ compensation. Preemption does not apply, and the debate should end there.

With that said, reasonable arguments can be raised in response. When analyzing preemption cases, the United States Supreme Court has – in the past – looked outside the text of a statute to analyze Congressional intent. The current pandemic would seem to be a compelling reason to do so. Even though the federal law does not mention workers’ compensation, both SAFRA and state laws address the same pandemic, the same evidentiary hurdles, and the same broader goal to help our first responders and essential workers. Arguably then, state laws that force claimants to prove their case without a presumption create an obstacle to accomplishing that broader congressional goal. Even though it was not explicit in the statute, preemption is implied, and all workers get the presumption.

Rest assured that this preemption argument will have to be answered by the courts.

Whether passed into law by the states or applied by the courts through legal doctrine, the future of COVID-19 litigation will be fought over presumptions. Given the ever-changing landscape created by the pandemic, it is important for workers' compensation practitioners to monitor this legislation in their state and contact a capable attorney for further questions about their specific cases.