Tuesday, April 21, 2020

Covid Causation Presumption Table as of April 20

 As compiled by Will Aitchison, Director, Labor Relations Information System. Obviously these developments are fluid so the table is likely already out of date. But it provides a snapshot.

Michael C. Duff

State

Status

Notes

Alabama

No presumptive causation

No bills pending in Legislature.

Alaska

Conclusive presumption

On April 10, Gov. Mike Dunleavy (R) signed into law SB 241, which contains a conclusive presumption that a firefighter, paramedic, emergency medical technician, peace officer, or health care provider who contracts COVID-19 after an on-the-job exposure contracted the disease as a result of an on-the-job exposure.

Arizona

No presumptive causation

No bills pending in Legislature.

Arkansas

No presumptive causation

No bills pending in Legislature. On April 14, Gov. Asa Hutchison (R) issued an order allowing first responders and healthcare workers to be eligible for workers compensation but only if they can demonstrate a causal connection between their diagnosis of and exposure to COVID-19 as a result of their employment or occupation.

California

No presumptive causation, but in flux

Reports are that Governor Gavin Newsom (D) may establish presumptive causation through taking executive action. If that does not occur, legislative bills likely to be introduced during the week of April 20.

Colorado

No presumptive causation

No bills pending in Legislature.

Connecticut

No presumptive causation

No bills pending in Legislature.

Delaware

No presumptive causation

No bills pending in Legislature.

Florida

No presumptive causation, but see notes

On April 1, the Chief Financial Officer for the State of Florida issued a directive applicable only to state employees. The directive, which state agencies can choose not to follow, creates a presumptive causation for employees testing positive for COVID-19.

The Florida League of Cities, which runs a workers’ comp insurance trust covering many cities and counties, sent a letter to Florida’s CFO stating that it will apply a presumption that exposure to COVID-19 is work-related for the purpose of workers’ comp for “first responders.”

Georgia

No presumptive causation

No bills pending in Legislature.

Hawaii

No presumptive causation

No bills pending in Legislature.

Idaho

No presumptive causation

No bills pending in Legislature.

Illinois

Presumed

On April 13, the Illinois Workers’ Compensation Commission announced an “emergency” amendment to its Rules of Evidence establishing presumptive causation if (1) a first responder or front-line worker is diagnosed with COVID-19 during a COVID-19-related state of emergency, and (2) the virus is causally connected to the hazards or exposures of the claimant’s employment. The rule shifts the burden of proof to employers to show off-the-job causation.

Indiana

No presumptive causation

No bills pending in Legislature.

Iowa

No presumptive causation

No bills pending in Legislature.

Kansas

No presumptive causation

No bills pending in legislature.

Kentucky

Presumed

By executive order on April 9, 2020, Gov. Andy Beshear (D) created a presumption that “removal from work by a physician” for COVID-19 is related to the job..

Louisiana

No presumptive causation

No bills pending in legislature.

Maine

No presumptive causation

No bills pending in legislature.

Maryland

No presumptive causation

No bills pending in legislature.

Massachusetts

No presumptive causation

Bills pending in legislature.

Michigan

Presumed

On March 18, Gov. Gretchen Whitmer (D), in conjunction with Michigan’s Department of Labor and Economic Opportunity, issued emergency rules creating an irrebuttable presumption that COVID-19 was caused by the job if (1) the employee is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure; (2) receives a COVID-19 diagnosis from a physician; (3) receives a presumptive positive COVID-19 test; or (4) receives a laboratory-confirmed COVID-19 diagnosis.

Minnesota

Presumed

On April 14, Gov. Tim Walz (D) signed H.F. 4537, establishing presumptive causation for emergency first responders and front-line workers unless the employer is able to prove the infection happened elsewhere.

Mississippi

No presumptive causation

No bills pending in legislature.

Missouri

Presumed

On April 8, Governor Mike Parson (R) issued an executive order applicable for the duration of the COVID-19 declared emergency. The order provides in relevant part that a first responder “who has contracted or is quarantined for COVID-19, is presumed to have an occupational disease arising out of and in the course of their employment. Such presumption shall include situations where the First Responder is quarantined at the direction of the employer due to suspected COVID-19 exposure, or the display of any COVID-19 symptoms, or receives a presumptive positive COVID-19 test, or receives a COVID-19 diagnosis from a physician, or receives a laboratory–confirmed COVID-19 diagnosis.” The presumption can be overcome by clear and convincing evidence.

Montana

No presumptive causation

No bills pending in legislature.

Nebraska

No presumptive causation

No bills pending in legislature.

Nevada

No presumptive causation

No bills pending in legislature.

New Hampshire

No presumptive causation

No bills pending in legislature.

New Jersey

No presumptive causation

Bills pending in legislature; president of senate has announced support.

New Mexico

No presumptive causation

No bills pending in legislature.

New York

No presumptive causation

Bills pending in Legislature, senate Bill S8117A. Would create a presumption that impairment of health caused by COVID-19 was incurred in the performance and discharge of duty of certain police, parole and probation officers and other emergency responders.

North Carolina

No presumptive causation

No bills pending in legislature.

North Dakota

Not really

By executive order on March 25, Gov. Doug Burgum (R) allowed workers’ compensation benefits for first responders, but only during quarantine and for a maximum of 14 days. Other claims require first responders to prove “that the infection resulted from a work-related exposure.”

Ohio

No presumptive causation

No bills pending in legislature.

Oklahoma

No presumptive causation

A group of Oklahoma legislators has written cities and counties expressing the hope that they will accept workers’ compensation claims from first responders suffering from COVID-19. However, no bills pending in legislature.

Oregon

No presumptive causation

No bills pending in legislature.

Pennsylvania

No presumptive causation

No bills pending in legislature.

Rhode Island

No presumptive causation but in flux

On April 17, Governor Gina Raimondo (D) announced that first responders “who contract coronavirus can now be eligible for workers’ compensation.” However, no executive order yet issued.

South Carolina

No presumptive causation

No bills pending in legislature.

South Dakota

No presumptive causation

No bills pending in legislature.

Tennessee

No presumptive causation

No bills pending in legislature.

Texas

Presumptive causation, partially

On March 30, Texas Gov. Greg Abbott (R) suspended two sections of the Texas Labor Code during the pandemic, essentially creating a conclusive presumption for public safety employees seeking “medical reimbursements” during the pandemic.

Utah

Likely to be presumed

On April 13, the Legislature approved HB 3007, establishing presumptive causation for first responders exposed to COVID-19 on the job. Awaiting governor’s signature.

Vermont

Presumptive causation in existing law, but only for firefighters

21 V.S.A. Section 601 (11)(H)(i) provides that for firefighters and members of a rescue or an ambulance squad, “disability or death resulting from lung disease or an infectious disease either one of which is caused by aerosolized airborne infectious agents or blood-borne pathogens and acquired after a documented occupational exposure in the line of duty to a person with an illness shall be presumed to be compensable, unless it is shown by a preponderance of the evidence that the disease was caused by nonservice-connected risk factors or nonservice-connected exposure.”

Virginia

No presumptive causation

No bills pending in legislature.

Washington

Presumed

On March 5, Governor Jay Inslee (D) announced that Washington’s Department of Labor and Industries will pay wage-loss and medical treatment expenses for any health care worker or first responder who is quarantined because of coronavirus exposure or who contracts COVID-19 after been exposed on the job.

West Virginia

No presumptive causation

No bills pending in legislature.

Wisconsin

In flux

On April 15, Gov. Tony Evers (D) signed Assembly Bill 1038, an omnibus COVID-19 bill that, in part, created presumed causation if the public safety employee can show an on-the-job exposure to COVID-19. Because of last-minute amendments to legislation, questions exist as to precisely what the employee must prove. The governor has announced support for corrective legislation.

Wyoming

No presumptive causation

No bills pending in Legislature.

Federal

Presumed, with some limitations

The Department of Labor takes the position that “the employment-related incidence of COVID-19 is more likely to occur among members of law enforcement, first responders and front-line medical and public health personnel, and among those whose employment causes them to come into direct and frequent in-person and close proximity contact with the public. If a COVID-19 claim is filed by a person in high-risk employment, the Office of Workers' Compensation Programs will accept that the exposure to COVID-19 was proximately caused by the nature of the employment. If the employer supports the claim and that the exposure occurred, and the CA-1 is filed within 30 days, the employee is eligible to receive Continuation of Pay for up to 45 days.”

https://lawprofessors.typepad.com/workerscomplaw/2020/04/covid-causation-presumption-table-as-of-april-20.html

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Comments

You should take a look at existing Tex. Gov't Code Sec. 607.054.
Sec. 607.054. TUBERCULOSIS OR OTHER RESPIRATORY ILLNESS. A firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician.

Posted by: Robert Stokes | Apr 24, 2020 5:35:15 AM

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