COVID-19 Regulatory & Legislative Update: WC Compensability Presumptions

The COVID-19 crisis has impacted many state legislative sessions with state legislatures adjourning early, postponing their sessions, or focusing primarily on COVID-19 and state budget-related matters.

NCCI is tracking COVID-19 related legislation around the country and at the federal level. While many of the bills address health insurance and business interruption coverage, as of June 2, at least 18 states have proposed workers compensation bills related to COVID-19, including expanding coverage for certain workers.

In addition, many states have issued executive orders, bulletins, and emergency rules addressing COVID-19, including directives on workers compensation coverage for certain workers and guidance on issues such as policy cancellation/nonrenewal, premium audits, and telemedicine.

This article focuses primarily on the legislation, regulations, executive orders, and emergency rules addressing workers compensation presumptions of compensability for COVID-19. NCCI’s COVID-19 Workers Compensation Compensability Presumptions chart contains links to the information referenced in this article.

Presumptions of Compensability

Legislation

To date, six states—Alaska, Illinois, Minnesota, Utah, Wisconsin, and Wyoming—have passed legislation establishing presumptions of compensability for COVID-19 for certain workers. Other states, including California, Colorado, Louisiana, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, and Vermont have proposed similar legislation with some states introducing multiple bills addressing the topic.

The presumption legislation generally falls into three categories:

  • Bills that establish compensability presumptions for first responders and/or certain healthcare workers.
  • Bills that establish compensability presumptions for essential or frontline workers. These proposals cover other occupations that may be exposed to COVID-19 such as grocery store workers and pharmacy workers. Several of these proposals are also applicable to first responders and healthcare workers.
  • Bills that establish compensability presumptions for all employees in the state.
Legislative Infographic

First Responders and Healthcare Workers

Three states have enacted legislation establishing presumptions for first responders and certain healthcare workers:

Alaska

  • SB 241—Presumption is applicable to firefighters, emergency medical technicians, paramedics, peace officers, and healthcare providers.

Utah

  • HB 3007—Presumption is applicable to “first responders.” The definition of “first responder” includes emergency responders and healthcare providers.

Wisconsin

  • AB 1038—Presumption is applicable to “first responders.” The definition of “first responder” includes an employee or volunteer for an employer that provides firefighting, law enforcement, or medical treatment of COVID-19 and who has regular, direct contact with, or is in regular close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.

Seven states have proposed legislation establishing presumptions for first responders, healthcare workers, or both:

California

  • AB 664—Applicable to firefighters, peace officers, and healthcare employees who provide direct patient care in an acute-care hospital, and fire and rescue services coordinators.
  • SB 893—Applicable to hospital employees who provide direct patient care in an acute-care hospital.

Massachusetts

  • AB 1038—Presumption is applicable to “first responders.” The definition of “first responder” includes an employee or volunteer for an employer that provides firefighting, law enforcement, or medical treatment of COVID-19 and who has regular, direct contact with, or is in regular close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.

Michigan

  • HB 5743—Applicable to “emergency first responders” exposed to an infectious disease in the performance of their duties during an emergency declared by the governor. Definition of “emergency first responder” includes law enforcement officers, firefighters, correctional officers, physicians, respiratory therapists, emergency medical services personnel, and licensed or registered nurses.
  • SB 906—Applicable to “emergency first responders” who contract COVID-19 during an emergency declared by the governor. Definition of “emergency first responder” includes law enforcement officers, firefighters, correctional officers, physicians, respiratory therapists, emergency medical services personnel, and licensed or registered nurses.

New York

  • A 10172/S 8041-A—Applicable to volunteer firefighters and volunteer ambulance workers.

North Carolina

  • HB 1056—Applicable to law enforcement officers, jailers, prison guards, firefighters, emergency medical technicians, and paramedics.

Ohio

  • HB 571—Applicable to peace officers, firefighters, and emergency medical workers. Applicable to claims arising during the time of emergency declared on March 9 and for a 14-day period after the emergency ends.
  • HB 667—Applicable to corrections officers.
  • HB 668—Applicable to peace officers, firefighters, and emergency medical workers.

South Carolina

  • HB 5482—Applicable to first responders, healthcare providers, and correctional officers. The definition of “first responder” includes a law enforcement officer, firefighter, emergency medical technician, or paramedic, as well as a volunteer law enforcement officer, firefighter, emergency medical technician, or paramedic. The definition of “first responder” also includes members of the South Carolina National Guard and South Carolina State Guard ordered to duty in response to a declared state of emergency or public health emergency.

Essential Employees

Illinois and Minnesota have passed legislation, and 10 other states have proposed legislation, establishing presumptions of compensability that have broader applicability than first responders and healthcare workers, but are not so broad as to cover all employees. In these proposals, the presumption is applicable to workers who are generally considered “essential employees.” However, the definitions vary by state proposal:

Illinois

  • HB 2455—COVID-19 first responder or frontline worker includes all individuals employed as police, fire personnel, emergency medical technicians, or paramedics; all first responders; all workers for healthcare providers, including nursing homes and rehabilitation facilities and home care workers; corrections officers; and any individuals employed by essential businesses and operations defined in Executive Order 2020-10 (includes grocery store workers, pharmacy workers, media services, gas stations, financial institutions, plumbers, electricians, dry cleaners, transportation providers, day care centers, and funeral services) as long as these individuals are required by their employer to encounter members of the general public or to work in locations with more than 15 employees. Does not include work at an employee’s home or residence except for homecare workers. (As of June 2, this bill passed both chambers and was sent to the governor.)

Minnesota

  • HF 4537—Applicable to a licensed peace officer, firefighter, paramedic, nurse, or healthcare worker, correctional officer, or security counselor employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; emergency medical technician; healthcare provider, nurse, or assistive employee employed in a healthcare, home care, or long-term care setting with direct COVID-19 patient care or ancillary work in COVID-19 patient units; and workers required to provide child care to first responders and healthcare workers under certain executive orders.

Ten states have proposed legislation establishing presumptions for specified essential workers:

California

  • AB 196—“Essential occupation or industry” as defined in CA Executive Order N-33-20. The order references 16 critical infrastructure sectors that may continue their work because of their importance to the state’s health and well-being. Those sectors include, but are not limited to, food and agriculture, transportation systems, and critical manufacturing. The bill specifies that it is not applicable to first responders and certain healthcare workers.
  • SB 1159—“Critical worker” is defined as a public or private sector employee who is employed to combat the spread of COVID-19.

Colorado

  • SB 20-216—“Essential worker” is defined to include the following employees required to work outside of their home: first responders, including law enforcement officers, firefighters, emergency medical services providers, paramedics, ambulance drivers, and 911 operators; corrections officers; medical, healthcare, and public health workers; home healthcare workers; commercial cleaning workers at facilities treating COVID-19 patients; nursing home workers, including cleaning staff; utility workers and in-home service technicians providing services at a facility treating patients diagnosed with COVID-19, a facility with an identified COVID-19 outbreak, or a home with an individual diagnosed with COVID-19; construction or maintenance workers at a facility treating patients diagnosed with COVID-19, a facility with an identified COVID-19 outbreak, or a home with an individual diagnosed with COVID-19; workers at residential care or living facilities treating patients with COVID-19 or with an identified COVID-19 outbreak; food processing and agricultural workers; grocery store workers; drivers and operators providing mass transportation services to the general public; and airline employees, including flight attendants, pilots, cleaning crew workers, and food service and catering workers.

Louisiana

  • SB 475—“Essential worker” is defined as a person working in public safety, government, disaster response, healthcare, or private business as designated and deemed necessary or critical for response to the COVID-19 pandemic by their employer or by virtue of their official commission.

Massachusetts

  • H 4739—“Essential worker” is defined as any individual who works for an essential business outside of the individual’s home and who has any contact with any other person. Includes, but is not limited to, any individual employed in a healthcare facility such as a hospital, physician’s office, clinic, laboratory, nursing home, rest home, or assisted living facility, or at any pharmacy, grocery store, or any other essential business that includes contact with the public or other workers such as a visiting nurse.

Michigan

  • HB 5758/SB 928—“Essential employee” is defined as an individual who is required to work during a state-declared emergency because that individual is considered necessary to sustain or protect life or to conduct minimum operations during a time that the state has ordered the closure of all businesses that are considered nonessential.

New Jersey

  • AB 3999—“Essential employee” is defined as an employee who is essential in support of gubernatorial or federally declared statewide emergency response and recovery operations; or an employee in the public or private sector with duties and responsibilities, the performance of which is essential to the public’s health, safety, and welfare.
  • SB 2380—“Essential employee” is defined as an employee in the public or private sector who, during a state of emergency: is a public safety worker or first responder; is involved in providing medical and other healthcare services, emergency transportation, social services, and other care services, including services provided in healthcare facilities, residential facilities, or homes; performs functions that involve physical proximity to members of the public and are essential to the public’s health, safety, and welfare including transportation services, hotel and other residential services, financial services, and the production, preparation, storage, sale, and distribution of essential goods such as food, beverages, medicine, fuel, and supplies for conducting essential business and working from home; or any other employee deemed essential by the public authority declaring the state of emergency.

New York

  • A 10391/S 8117-A—“Essential employee during COVID-19 outbreak” is defined as an employee who worked at an essential business during the COVID-19 outbreak. Examples of essential businesses include, but are not limited to: essential healthcare operations, such as research and laboratory services; essential infrastructure, such as utilities, telecommunication, airports, and transportation infrastructure; essential manufacturing, such as food processing and pharmaceuticals; essential retail, such as grocery stores and pharmacies; essential services, such as trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; and construction.

North Carolina

  • HB 1057—“Covered person” is defined as a law enforcement officer, jailer, prison guard, firefighter, or an emergency medical technician or paramedic employed by a state or local governmental employer, including certain volunteer firefighters; a healthcare worker; or an employee required to work during the pandemic for businesses declared essential by executive order of the governor or by order of local governmental authority, including food service, retail, and other essential personnel.

Ohio

  • HB 573—Provides that COVID-19 contracted by an employee who was required to work by the employee’s employer outside of the employee’s home during the emergency declared by executive order 2020-01D constitutes a presumption that COVID-19 was contracted in the course of and arising out of the employee’s employment outside of the employee’s home.
  • HB 605—Applicable to an employee of a retail food establishment or food processing establishment.
  • HB 606—Applicable to an employee of a retail food establishment or food processing establishment; peace officers, firefighters, emergency medical workers and correctional officers.
  • HB 633—Applicable to employees at nursing homes, residential care facilities, and healthcare facilities.

Pennsylvania

  • HB 2396—“Individual employed by a life-sustaining business or occupation” includes, but is not limited to: first responders, correction officers, emergency services dispatchers, ambulance drivers, retail workers, food and agricultural workers, certain medical and healthcare workers, pharmacists, home healthcare workers, public utility workers, trash collectors, warehouse workers, and any other individual employed by a life-sustaining business or occupation who is required to work during a public health emergency.

All Employees

One state has enacted legislation establishing presumptions for all employees:

Wyoming

  • SF 1002—Applicable to any employee covered by the state workers compensation act infected with COVID-19 for the period January 1, 2020 through December 30, 2020.

One state has proposed legislation establishing presumptions for all employees:

Vermont

  • S 342—Applicable to “frontline workers,” which includes, but is not limited to: firefighters, law enforcement officers, workers in long-term care facilities or residential care facilities, certain child care providers required to provide child care to the children of other frontline workers, employees of pharmacies or grocery stores, and home healthcare workers or personal care attendants. However, the presumption is also applicable to employees who are not “frontline workers” if certain conditions are met.

Federal Legislation

On May 15, the House passed HR 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act).

  • The bill creates a presumption for federal employees exposed to COVID-19, including employees of the US Postal Service, the Transportation Security Administration, or the Department of Veterans Affairs, employed in the federal service at any time during the period January 27, 2020 through January 30, 2022, who carried out duties requiring contact with patients, members of the public, or co-workers; or whose duties include a risk of exposure to COVID-19. The presumption is not applicable to employees who were teleworking on a full-time basis during that time.
  • The bill also creates a presumption under the Longshore and Harbor Workers Compensation Act for employees engaged in maritime employment any time from January 27, 2020 through January 27, 2022, who were diagnosed with COVID-19 or were ordered not to return to work due to risk of exposure in the workplace.

Congress also recently introduced HR 6656, which creates a presumption for Transportation Security Administration (TSA) employees who contract COVID-19. The bill defines TSA employee to include a transportation security officer, a federal air marshal, a canine handler, and any employee carrying out duties that require substantial contact with the public.

Retroactivity Clauses

Some of the bills indicate that the presumption is effective retroactively. For example:

  • Alaska SB 241, which was enacted April 9, 2020, states that the workers compensation compensability presumption is effective retroactive to March 11, 2020.
  • Minnesota recently proposed legislation (HF 4515/SF 4425) to amend the new Minnesota presumption law (enacted on April 7) to make the new law effective retroactively from March 10, 2020.
  • South Carolina’s proposed legislation (HB 5482) is intended to apply retroactively to first responders, healthcare providers, and correctional officers who, before the effective date of the bill, received a COVID-19 diagnosis from a physician; received a presumptive positive or laboratory confirmed COVID-19 test; or were directed to isolate by an employer due to confirmed or suspected COVID-19 exposure.

Executive Orders and Emergency Rules

In addition to legislative activity, eight states (California, Florida, Illinois, Kentucky, Michigan, Missouri, New Hampshire, and New Mexico) have issued executive orders or adopted emergency rules regarding presumptions of compensability for COVID-19. The executive orders also vary as to the groups of workers covered.

Regulatory Infographic

First Responders and Healthcare Workers

Four states have issued executive orders, emergency rules, or directives establishing presumptions for first responders and/or healthcare workers:

Florida

  • Directive 2020-05—“Frontline State Employee” includes first responders, corrections officers, and other employees whose official duties require physical presence in a state-operated detention facility, state employees working in the healthcare field whose duties require contact with persons tested for COVID-19 or known to be infected with COVID-19, child safety investigators, and members of the Florida National Guard.

Michigan

  • Emergency Rules 684245—“First Response Employee” includes, but is not limited to: ambulance operations; hospice, hospital, and nursing home workers; home healthcare workers and visiting nurses; physicians, nurses, emergency medical technicians, paramedics, respiratory therapists, police officers, firefighters, and correctional officers.

Missouri

  • Emergency Rule 8 CSR 50-5.005—Applicable to “first responders.” Defined as a law enforcement officer, firefighter, or emergency medical technician.

New Hampshire

  • Emergency Order 36—Applicable to “First Responders” covered by the definition of “emergency response/public safety worker.” The definition includes call, volunteer, or regular firefighters; certified law enforcement officers; certified county corrections officers; emergency communication dispatchers; and rescue or ambulance workers including ambulance service, emergency medical personnel, first responder service, and volunteer personnel.

Essential Employees

Three states have issued executive orders or emergency rules establishing presumptions for essential workers:

Illinois

  • Emergency Regulation Amendment Section 9030.70 Rules of Evidence—“COVID-19 first responder or frontline worker” includes, but is not limited to: police, fire personnel, emergency medical technicians, paramedics, healthcare providers engaged in patient care, corrections officers, and crucial personnel identified in Executive Order 2020-10 to include grocery store workers, pharmacy workers, media services, gas stations, financial institutions, plumbers, electricians, dry cleaners, transportation providers, day care centers, and funeral services. (This regulation was withdrawn on April 27.)

Kentucky

  • Executive Order 2020-277—Includes first responders (law enforcement, emergency medical services, fire departments), employees of a healthcare entity, 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, and certain child care workers removed from work by a physician due to occupational exposure to COVID-19.

New Mexico

  • Executive Order 2020-025—Applicable to state agency employees and eligible volunteers (defined as any volunteer or contractor temporarily assisting the state during the COVID-19 public health emergency who is otherwise eligible for compensation under the New Mexico Occupational Disease Disablement Law) who contract COVID-19 within two weeks of providing direct assistance or care to COVID-19 patients, or within two weeks of working in any capacity inside a facility that provides direct assistance, care, or housing to COVID-19 patients. Examples of employees who should be afforded the presumption include, but are not limited to: first responders, volunteer and paid medical personnel, administrative and custodial staff at COVID-19 specific care centers, and law enforcement officers.

All Employees

On May 6, California issued Executive Order N-62-20, which creates a rebuttable presumption that is applicable to any employee diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction. This does not include work done at the employee’s home or residence.

Map Infographic

Other Compensability Provisions

A few states have introduced legislation or issued executive orders that do not create presumptions, but do address compensability for COVID-19:

New York has introduced legislation (A 10401/S 8266) that includes exposure to COVID-19 as an occupational disease. The legislation is applicable to any and all work that causes workers to be in contact with the public, patients, inmates, residents, parolees, clients, students, customers, diners, persons in custody, and travelers during a COVID-19 outbreak; or any and all work that could expose workers to COVID-19, including, but not limited to: work in airports, bus, train and subway stations, parks, restaurants, cafeterias, retail facilities, universities, and day care facilities.

Arkansas issued two executive orders that, in part, suspend certain provisions of the Arkansas statutes regarding workers compensation that might otherwise prevent a claim from being compensable.

  • Executive Order 20-19 suspends some workers compensation statutory provisions for first responders and frontline healthcare workers exposed to COVID-19; and
  • Executive Order 20-22 extends the suspension of workers compensation statutory provisions that were included in Executive Order 20-19 to Arkansas National Guard Soldiers and Airmen on State Active Duty exposed to COVID-19. This order also defines first responders and frontline healthcare workers as follows:
    • First responder includes, but is not limited to, emergency response providers in the following fields: fire, law enforcement, emergency response, emergency medical professionals, and any other personnel determined to be eligible by the Arkansas Workers Compensation Commission.
    • Frontline healthcare worker is defined to include, but is not limited to: healthcare professionals who provide treatment, diagnosis, care, or mitigation of COVID-19; provide assessment or care of an individual with a confirmed or suspected case of COVID-19; or otherwise provide services determined by the Arkansas Workers Compensation Commission to mitigate COVID-19.

North Dakota has issued two executive orders that expand workers compensation coverage for first responders, certain healthcare workers, and funeral workers exposed to COVID-19:

  • Executive Order 2020-12—First responders, frontline healthcare workers, and all occupations in NDCC 65-01-02(11)(b)(1) (includes healthcare providers, firefighters, peace officers, correctional officers, court officers, law enforcement officers, emergency medical technicians, and individuals trained to render emergency medical assistance) exposed to COVID-19 in the course of employment are eligible for workers compensation benefits if certain conditions are met.
  • Executive Order 2020-12.1—Extends eligibility for workers compensation benefits in EO 2020-12 to funeral directors and funeral home workers.

The state of Washington’s Department of Labor and Industries announced in March that first responders and healthcare workers exposed to COVID-19 on the job are eligible for workers compensation benefits during the time they are quarantined.

It remains to be seen whether state legislatures will act on other workers compensation matters when they reconvene or if the focus will remain primarily on COVID-19. NCCI will continue to monitor all state and federal workers compensation-related legislation and regulations and will continue to update our Legislative Activity page with the latest developments.

Resources

COVID-19 Regulatory & Legislative Activity chart (PDF)

COVID-19 Resource Center page

COVID-19 and Workers Compensation: Modeling Potential Impacts (PDF)

Compensability Statutory Survey (PDF)


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