The COVID-19 omicron variant appears to be waning and several states have lifted their mask mandates in recent weeks, but legislators are just getting started when it comes to the pandemic and workers compensation.
Since state lawmakers went back to work in January, more than a dozen pieces of new or revived pieces of legislation have been filed, and more are expected, legal experts say.
“COVID-19 presumption legislation continues to be a hot topic for workers compensation,” said Laura Kersey, executive director, regulatory and legislative analysis, for the Boca Raton, Florida-based National Council on Compensation Insurance. “Several states that enacted COVID-19 workers compensation presumption legislation in 2020 and 2021 are considering legislation to extend those presumptions to a later date and/or expand those presumptions to additional workers.”
NCCI’s analysis of recent activity, which highlights bills presented in nearly a dozen states, shows legislation that would expand presumptions beyond COVID-19 to other infectious diseases is trending again. Two states – California and Florida—have introduced such legislation this year, after the 2021 season saw nearly a dozen similar bills introduced throughout the U.S., according to Ms. Kersey.
Another trend concerns vaccine injuries. Lawmakers in at least six states have presented bills that would explicitly state that any adverse reaction from a mandated vaccine would be compensable in workers comp.
Of immediate concern, however, are the presumptions.
“In spite of the fact that omicron is literally everywhere, even among the fully vaccinated, many states are seeking to extend their COVID presumptions. I really don’t see how anyone could show their work puts them at greater risk given how widespread the disease is, but that does not stop legislatures from charging ahead with these bills,” said Mark Walls, Chicago-based vice president of client engagement at Safety National Casualty Corp.
Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association, said the expansion of comp coverage of other communicable diseases by presumption, in particular, would hurt the industry.
“It is extremely difficult to run a no-fault system when you are going to cover injuries when there is no proof it happened in the workplace,” Mr. Bennett said. “To keep (the workers comp industry) healthy and balanced and financially stable you need proof that the actual injury took place in the workplace.”
Most, if not all, of the COVID-19 presumptions are rebuttable, meaning if an employer can prove the worker contracted the virus elsewhere the presumption is void. In Illinois, where a presumption has been in place since 2020, employers need only cast doubt on the worker having gotten sick at work.
Rich Lenkov, capital member and head of the workers compensation practice at Bryce Downey & Lenkov LLC in Chicago, said that at the time the presumption bill became law in Illinois he expected plenty of litigation, but that hasn’t materialized.
There were two cases statewide, and the courts upheld the presumption, he said.
Claims for COVID-19 have had minimal impact on the comp industry. Ratings agencies, including NCCI, reported average claims costs of between $3,000 and $5,000 throughout the pandemic. Most of the claims have had no medical component, meaning that in most cases insurers have paid for quarantine time-off for workers to recover.
Expanding legislation beyond COVID-19 is a concern, legal experts say.
“There is definitely the risk of expanding this one disease into other diseases and state governing bodies expanding compensability of conditions,” Mr. Lenkov said.
“What we learned from COVID is that governing bodies will bend over backward to find a condition compensable even though science and common sense dictate that it’s difficult to prove that it was related to work,” he said.
Jeff Adelson, a partner with the Newport Beach, California, firm Adelson McLean P.C., said a case in California – See’s Candies, Inc. v. Superior Court – could have far-reaching implications for comp. At the heart of the case is a woman suing her employer, See’s Candies, after she allegedly caught COVID-19 at work and gave it to her husband, who died. In December an appeals court in California allowed the suit to proceed after See’s Candies argued exclusive remedy barred the lawsuit.
“In California, it could become case law,” Mr. Adelson said. “The judge is looking at it as a tort liability yet is not considering the comp implications,” especially with a presumption in place that a worker was infected at work.
Employers should be “worried about broadening of the presumption,” he said, adding, “that presumption could spill over to a See’s case scenario.”
This article was first published in Business Insurance.