NCCI monitors legislative activity that could impact the workers compensation system and 2021 is already shaping up to be a busy legislative season. Several trends we reported on in 2020 remain in the spotlight, including COVID-19 workers compensation presumptions of compensability, workers compensation for workplace-related mental injuries, the legalization of marijuana, single-payer health insurance proposals, and independent contractors/gig economy. This report is an update as of
March 1, 2021.
NCCI is tracking more than
700 state and federal bills, including
497 bills in states where NCCI provides ratemaking services. NCCI is also currently monitoring
161 workers compensation-related regulations.
COVID-19 Workers Compensation Presumptions
NCCI is tracking legislation to establish or extend workers compensation presumptions for COVID-19 for certain workers. These are presumptions that the contraction of or exposure to COVID-19 arises out of and in the course and scope of employment and is a compensable injury or disease. We are currently monitoring COVID-19 workers compensation presumption legislation in
nine states enacted COVID-19 presumption legislation (Alaska,
Wyoming.) Many of the COVID-19 workers compensation presumptions are temporary in nature, meaning the presumption is applicable for a certain period of time or expires when the jurisdiction’s state of emergency ends.
This year several of the states that enacted COVID-19 presumption legislation in 2020 are taking additional action to extend and/or expand those presumptions. For example:
Vermont enacted legislation (S 9) extending the workers compensation COVID-19 presumption provisions for an employee receiving a positive diagnosis or test between April 2020 and “30 days following the termination of the state of emergency”
Illinois recently enacted legislation (HB 4276) extending the COVID-19 presumption provisions through June 30, 2021
Wisconsin are considering legislation to extend their presumptions, expand the types of workers covered under their presumptions, and/or apply their presumptions retroactively
In 2021, additional states, including
Virginia, are considering establishing new workers compensation presumptions for COVID-19 for certain workers.
- For example,
Virginia passed legislation (HB 2207/SB 1375) establishing a workers compensation presumption for COVID-19 for firefighters, emergency medical services personnel, law enforcement officers, correctional officers, and regional jail officers; and HB 1985, which establishes a presumption for health care providers
- Other jurisdictions, such as
Arkansas and the
District of Columbia, are considering legislation providing that COVID-19 is a compensable injury or occupational disease
New Trends in 2021 COVID-19 Legislation
As NCCI reviews 2021 COVID-19 and related legislation, the following new trends are emerging:
Expansion of Types of Workers: While many of the bills we monitored in 2020 focused on establishing presumptions that were applicable primarily to first responders and/or healthcare workers, several of the current legislative proposals establish presumptions for additional categories of workers. For example:
- Legislation in
Texas would establish presumptions for teachers/school employees
- Legislation in
Texas would establish presumptions for nurses (as a separate category from healthcare workers)
- Legislation in
Iowa would establish presumptions applicable to all employees in the state
Presumptions Beyond COVID-19: In 2021, several states have proposed legislation to create workers compensation presumptions of compensability that could be applicable beyond the current COVID-19 pandemic.
- To date, at least
12 states (Alaska,
Washington) have introduced legislation that would establish workers compensation presumptions for infectious diseases and pandemics.
- While several of these bills specifically mention COVID-19, these proposals also contain terms such as “contagious disease,” “COVID-19 or similar disease,” or “other future qualifying pandemic.” This could mean that the presumption would still be applicable even after the current COVID-19 pandemic ends.
- Many of these proposals do not include sunset provisions or expiration dates, so they may not be temporary in nature.
COVID-19 and Exclusive Remedy: Some states have introduced legislation addressing the impact of COVID-19 on the workers compensation exclusive remedy:
Hawaii introduced legislation (HB 1224/SB 1415) that proposed an exception to the workers compensation exclusive remedy when an employee, whose employer failed to maintain adequate workplace protections against exposure to COVID-19, contracts the virus
Hawaii legislation also created a presumption that COVID-19 is proximately caused by an employer’s failure to maintain adequate workplace protections. (The
Hawaii bills did not make a procedural legislative deadline and are unlikely to advance this legislative session.)
Other states, including
West Virginia, have also introduced legislation addressing COVID-19 and the exclusive remedy, providing that workers compensation is the exclusive remedy for COVID-19 claims.
Workers Compensation for Workplace-Related Mental Injuries
NCCI is monitoring approximately
40 bills addressing workers compensation for mental injuries. This includes more than
30 bills related to post-traumatic stress disorder (PTSD). States are unique as to how they define “mental injury.” For example:
Connecticut has proposed numerous bills this year addressing coverage for workplace-related mental injuries in these categories:
Certain mental or emotional impairments—HB 5560, SB 142, SB 660, SB 665, SB 666
Mental and emotional injuries—SB 364, SB 365
PTSD—HB 5380, HB 5951, HB 5953
Kansas has introduced legislation (HB 2307) addressing coverage for mental injuries arising from
emotional shock, or
a series of work-related events
Kentucky HB 500 defines “injury” to include
psychological injuries for certain employees
New York AB 2020 relates to claims for mental injuries premised upon
extraordinary work-related stress
Legalization of Marijuana
As of this report,
15 states plus DC have legalized recreational marijuana and
35 states plus DC have legalized medical marijuana.
- Several states are considering legislation to legalize marijuana in some form this year, including
New York, and
Virginia recently passed legislation (HB 2312/SB 1406) to legalize the recreational use of marijuana. The bill is currently awaiting action by the governor.
- A few states have introduced legislation addressing reimbursement for medical marijuana in workers compensation:
Kentucky (HB 136) and
Nebraska (LB 474) have introduced legislation providing that medical marijuana reimbursement is not required in workers compensation
New Jersey has pending legislation (S 3406) that would require reimbursement for medical marijuana
Maryland proposal (HB 683/SB 461) provides that an employee is not entitled to workers compensation benefits if medical cannabis was the sole cause of the injury and the medical cannabis was not administered or taken with the written certification of a certifying provider or the written instruction of a physician.
Alabama Senate has passed legislation (SB 46) that allows medical marijuana use and provides that the medical marijuana law does not affect, alter, or impact an employer’s right to deny or establish legal defenses to the payment of workers compensation benefits to an employee who uses medical cannabis. The bill is now under consideration in the Alabama House.
- While not specific to marijuana,
Rhode Island (HB 5473) establishes that an employee who tests positive for alcohol or a controlled substance which was not legally prescribed is presumed intoxicated at the time of injury and it is presumed that the intoxication caused the injury.
As states continue to actively address marijuana issues, marijuana remains illegal at the federal level. However, with the new administration, federal legislation to remove marijuana from the list of Schedule 1 substances in the federal Controlled Substances Act may get traction this year, along with legislation to provide a safe harbor for financial institutions that provide services to the marijuana industry.
Single-Payer Health Insurance Programs
10 states are considering legislation to establish a single-payer health insurance program. Five of those states—California,
Rhode Island, and
Texas—specifically mention workers compensation or injured workers medical benefits in their proposals.
To date, no one has introduced federal single-payer health insurance legislation in the new Congress.
Independent Contractors/Gig Economy
NCCI is tracking workers compensation-related independent contractor legislation in
13 states so far this year.
Utah has passed legislation (SB 32) that creates the Remote Service Marketplace Platforms Act, defines “marketplace company” as a person who offers a digital application to the public and accepts requests for remote services exclusively through the person’s digital application, and establishes that a remote-service contractor is not an employee of a marketplace company if they meet certain conditions.
West Virginia has introduced several bills (HB 2020, HB 2530, HB 2590, SB 6, SB 272) that provide criteria for determining whether a worker is an employee or an independent contractor for workers compensation purposes.
NCCI will continue to provide updates on these hot topics and trending issues throughout the year. Check out the
Related Content section for information about where to find these updates, including NCCI’s Legislative Activity and COVID-19 Resource Center pages on
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