As 2022 begins and states reconvene their legislative sessions, NCCI looks back at some of last year’s top workers compensation legislative trends and considers what’s on the horizon for the upcoming year. This article covers questions that are top of mind, including:
Are There New Trends in COVID-19 Workers Compensation Legislation?
COVID-19 Workers Compensation Presumptions
In 2020 and 2021, the legislative hot topic was COVID-19 workers compensation presumptions. Generally, these have been presumptions that an employee’s exposure to, or contraction of, COVID-19 was work related or is a compensable injury or disease.
In 2020, nine states enacted COVID-19 workers compensation presumptions (Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin, and Wyoming).
In 2021, states took additional action, including:
- Five states (Alaska, Illinois, Minnesota, Vermont, and Wyoming) passed legislation to extend their presumptions to a later date and/or expand their presumptions to include additional types of workers.
- Two states (Texas and Virginia) enacted legislation to establish new COVID-19 presumptions for certain types of workers.
- Several states proposed legislation to create workers compensation presumptions that could be applicable beyond the current COVID-19 pandemic.
- At least a dozen states introduced legislation that would establish workers compensation presumptions for infectious diseases and pandemics.
- While several of these bills specifically mentioned COVID-19, these proposals also contain terms such as “contagious disease,” “COVID-19 or similar disease,” or “other future qualifying pandemic.”
- Two states (Tennessee and Washington) enacted this type of legislation in 2021.
Based on the trends in 2020 and 2021, states are likely to continue to consider additional COVID-19 and infectious disease workers compensation presumption legislation in 2022. For example, Florida prefiled legislation (HB 117) for the 2022 legislative session that would establish a workers compensation presumption for COVID-19 or an infectious disease for emergency rescue and public safety workers.
States are also beginning to look at a new COVID-19-related topic—legislation addressing workers compensation and vaccinations.
Workers Compensation and COVID-19 Vaccinations
Several states introduced legislation in late 2021 addressing workers compensation and COVID-19 vaccines. Some states proposed legislation establishing a workers compensation presumption for an employee’s adverse effects from an employer-mandated vaccination. A few states proposed legislation creating a private right of action against an employer for certain injuries or death resulting from an employer-mandated COVID-19 vaccination. For example:
- Idaho, Tennessee, Texas, and Wyoming considered COVID-19 vaccine-related workers compensation legislation during special legislative sessions in 2021. However, none of these bills were enacted.
- The legislation in Idaho, Texas, and Wyoming would have established a workers compensation presumption for injuries related to COVID-19 vaccinations.
- Proposed legislation in Tennessee would have included side effects from an employer-mandated COVID-19 vaccination, immunization, or injection in the definition of “injury” in the state workers compensation law.
- Ohio and Wisconsin introduced bills during regular legislative sessions in 2021 (both states are in session all year).
- Ohio proposed two bills (HB 218 and HB 435) that would amend the definition of “injury” in the workers compensation law to include an injury or disability caused by a COVID-19 vaccine if the employer required the employee to receive the vaccine as a condition of employment.
- Ohio proposed another bill (HB 401) to exclude injury or disability from an employer-mandated COVID-19 vaccination from the definition of “injury” in the workers compensation law. The bill also allows an employee to bring a claim against an employer for damages caused by a COVID-19 vaccination if the employer required the employee to receive the vaccine as a condition of employment.
- Wisconsin introduced AB 681/SB 721, which provides that an employee’s injury due to an employer-mandated or coerced COVID-19 vaccine is presumed to be caused by the individual’s employment.
Pennsylvania also introduced legislation for the 2021–2022 session (HB 2135) to require employers to record adverse events associated with work-related vaccines. However, the bill does not specifically reference COVID-19.
The following states prefiled workers compensation-related COVID-19 vaccination legislation for the 2022 legislative session:
- Alabama HB 16 and HB 29 would provide a private right of action against an employer for certain injuries or death resulting from an employer-mandated COVID-19 vaccination of an employee.
- Kentucky HB 54/HB 62 would create a rebuttable presumption that the COVID-19 vaccine caused an adverse reaction if it was not present prior to and arises within 14 days of receipt of the vaccine.
- New Hampshire HB 1352 provides that an adverse reaction to an employer-mandated COVID-19 vaccination is deemed to be an occupational disease for the purpose of determining eligibility for workers compensation.
- South Carolina SB 902 provides that all adverse health conditions or death arising as a result of receiving a COVID-19 vaccination mandated by an employer or the local, state, or federal government are compensable under the state workers compensation law.
While additional states may propose COVID-19 vaccine-related legislation, it is possible that other new COVID-19 workers compensation-related trends will also emerge during the 2022 legislative season.
What Is the Future of Worker Status?
The issue of whether a worker is an employee or an independent contractor has been a hot topic over the past several years and is expected to be a hot topic again in 2022.
California has been active on this topic in recent years. In 2019, California enacted legislation (AB 5) which established a three-part test for determining worker status. This test is known as the “ABC” test. In 2020 and 2021, California considered additional legislation to carve out certain businesses and occupations from the ABC test. For example, in 2021 California passed AB 1561, which extends the exemption for certain professions, such as licensed manicurists and subcontractors in the construction trucking industry, from the ABC test.
Furthermore, California voters passed a ballot measure in 2020 (Proposition 22), which determined that app-based rideshare and delivery network drivers are independent contractors—and not employees of transportation and delivery network companies—if certain conditions are met. In August 2021, a California superior court judge ruled that the ballot measure was unconstitutional and noted the impact on workers compensation in the decision.
We expect additional activity on this issue in California as well as in other states. In 2021, NCCI tracked legislation in several states, including New Jersey, New York, Pennsylvania, and Rhode Island, which would have created a state test for determining worker status that was similar to the California ABC test.
In May 2021, the US Department of Labor withdrew the “Independent Contractor Status Under the Fair Labor Standards Act” final rule that addressed standards for classifying workers as employees or independent contractors. The final rule was promulgated at the end of the last administration but did not take effect. It is possible that the new administration will promulgate updated rules on worker classification, but it is unclear at this time if/when they will do so.
Will Congress Act on Single-Payer Health Insurance and Legalization of Marijuana?
While there is pending federal legislation addressing hot topics such as single-payer health insurance and the legalization of marijuana, in recent years most of the legislative activity on these issues has been at the state level.
Single-Payer Health Insurance
Last year, the House of Representatives introduced the Medicare for All Act of 2021, which proposes establishing a national insurance program to provide universal healthcare coverage. The bill, which is pending in committee, includes a provision that requires workers compensation insurers that are liable for payments of workers compensation medical benefits to reimburse the Medicare for All Program for the costs of medical services provided for compensable work-related injuries. The provision is similar to the treatment of workers compensation medical costs included in previous Medicare for All proposals from prior years.
At the state level, NCCI monitored bills in 17 states last year that proposed to implement or study single-payer health insurance systems. In nine of the states (California, Iowa, Maine, Maryland, Massachusetts, Minnesota, New York, Rhode Island, Texas) the legislation specifically referenced workers compensation or injured workers’ medical benefits.
Maine was one of three states that enacted single-payer health insurance-related legislation in 2021, although the workers compensation language was amended out of the Maine bill before it passed. However, the new Maine law does not go into effect unless federal law is enacted that authorizes a state to obtain a waiver to establish a state-based universal healthcare plan and to receive federal funding for that plan.
Legalization of Marijuana
NCCI is monitoring federal marijuana legislation including bills that would:
- Remove marijuana from the list of Schedule I drugs under the federal Controlled Substances Act.
- Provide a safe harbor from penalties for financial institutions that provide services for legitimate cannabis-related businesses.
- Provide a safe harbor for insurers engaging in the business of insurance in connection with a cannabis-related legitimate business.
Additional federal legislation, including comprehensive marijuana reform, is expected to be introduced in Congress in 2022.
It is unclear at this time whether Congress will enact any of these proposals. While marijuana remains illegal at the federal level, states continue to legalize it through legislation and ballot measures. There are now 18 states, plus the District of Columbia, that have legalized the recreational use of marijuana. In 2021, four states (Connecticut, New Mexico, New York, and Virginia) legalized marijuana for recreational purposes through legislation and Alabama enacted legislation to legalize the medical use of marijuana.
In 2022, several states are expected to consider legislation to legalize marijuana in some form, including Iowa, Kansas, Maryland, Nebraska, and Rhode Island. In addition, there are efforts in some states to consider ballot measures to legalize marijuana during the November 2022 elections.
While states are likely to continue to address marijuana-related issues and single-payer health insurance proposals this year, it remains to be seen whether Congress will advance legislation on these topics in 2022.
What New Issues Are on Our Radar?
There are a couple of new topics that may emerge as potential workers compensation issues to watch in 2022 and beyond. Two emerging issues with the potential to impact workers compensation are climate change and compensation for college athletes.
Climate Change-Related Legislation
In 2021, at least three states (Minnesota, Missouri, and West Virginia) considered legislation that would add skin cancer to the list of occupational diseases presumed to be work related for workers compensation purposes. These presumptions are primarily applicable to first responders.
While California already has an occupational disease presumption for skin cancer, the state proposed legislation to expand the presumption to certain peace officers of the Department of Fish and Wildlife as well as the Department of Parks and Recreation. Another California proposal would extend the time period for certain lifeguards to file a claim for skin cancer. These bills were introduced in 2021 and carried over to the 2022 legislative session.
Michigan enacted legislation to extend the presumption for certain occupational diseases, including skin cancer, to part-time, paid on-call, and volunteer firefighters (HB 4172).
In addition, the issue of heat-related illnesses and injuries is receiving more attention as average temperatures have increased. Concerns also surfaced regarding first responders’ injuries related to disaster response.
It is possible that we will see an increase in skin cancer presumption bills, heat-related proposals, and other topics that may be related to climate change in 2022 and beyond.
Compensation for College Athletes
According to the
National Conference of State Legislatures, 25 states passed legislation and three states issued executive orders that, in general, would allow college athletes to receive compensation for use of their name, image, or likeness. There is also pending federal legislation on this topic.
Additionally, in September 2021, the National Labor Relations Board (NLRB) issued Memorandum GC 21-08, Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act. The memorandum reinstated a prior position from the NLRB that certain college athletes are considered employees under the National Labor Relations Act.
This raises several questions, such as whether this is the start of a new trend to expand compensation for college athletes beyond use of name, image, and likeness. If so, could this expansion ultimately impact the workers compensation system? Will college athletes injured on the playing field receive workers compensation for their injuries in the future? It remains to be seen.
NCCI Resources for Workers Compensation Legislative Developments
1. Where can I find updates on workers compensation legislation?
NCCI monitors workers compensation legislation in all jurisdictions and at the federal level on our
Legislative Activity page on
2. Where can I find information on workers compensation regulatory and legislative trends?
3. Where do I go for COVID-19 legislative and regulatory activity updates?
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