Last updated: 10/12/2020
On Wednesday, April 15, 2020, Wisconsin Governor Tony Evers signed Wisconsin Act 185 into law. This law is focused on the state’s COVID-19 response and includes implications for Wisconsin workers’ compensation claims for first responders.
The Wisconsin bill includes the following language:
Rebuttable presumption that injury caused to first responders during current public health emergency is caused by employment”
This bill provides that, for the purposes of worker’s compensation, an injury caused to a “first responder”, during any public health emergency declared by the governor on March 12, 2020, by executive order 72 and ending 30 days after the termination of the order, is presumed to be caused by the individual’s employment. The presumption requires a diagnosis or positive test for COVID-19, the employee must have been exposed to persons with confirmed cases of COVID-19 in the course of employment, and the presumption may be rebutted by specific evidence that the injury was caused outside of employment.
An injury claimed under this provision:
- must be accompanied by a specific diagnosis by a physician or by a positive COVID-19 test; and
- the employee must have been exposed to persons with confirmed cases of COVID-19 in the course of employment; and
- may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder’s work for the employer.
“First responder” is broadly defined as an employee of, or volunteer for, an employer that provides firefighting, law enforcement, medical, or other emergency services, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services within the scope of the individual’s work for the employer.
This provision establishes that any injuries or deaths to employees or volunteers in the occupations listed, and that are caused by COVID-19 during the period specified, would be presumed to be caused by the individual’s employment.
Although the provision specifically applies to first responders, current law would not preclude worker’s compensation claims from persons in other occupations who are exposed to COVID-19 in the course of their employment. However, claims for employees in other occupations not listed would have to establish an injury or death related to COVID-19 was a result of employment.
Effective Wednesday, April 8, 2020, Minnesota Governor Tim Walz signed into law a temporary amendment to Minnesota’s Workers’ Compensation Act. That temporary amendment grants that certain employees who contract COVID-19 are presumed to have an occupational disease covered by the Minnesota workers’ compensation law.
The Minnesota statute lists the following employment classifications as eligible for the presumption:
- Peace office under section 626.84, subdivision 1
- Nurse or health care 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
- Health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units
- Workers required providing child care to first responders and health care workers under Executive Order 20-02 and Executive Order 20-19. (The referenced Executive Orders define child care provider broadly. Child care provider includes family child care, schools, other facilities, family, friend, and neighbor care.
The employee’s contraction of COVID-19 must be confirmed by a positive laboratory test or, if a test is not available, a licensed physician, licensed physician’s assistant or licensed advanced practice registered nurse (APRN) may diagnose the employee’s symptoms as COVID-19 without a positive test.
The statute does indicate that in order to qualify for the presumption a copy of the positive test or written documentation of the diagnosis must be provided to the employer or workers’ compensation insurer.
This law is effective for employees who contract COVID-19 on or after the day following final enactment and sunsets May 1, 2021.
UPDATE (4/29/2020): On April 27, 2020, the Illinois Workers’ Compensation Commission (IWCC) repealed a provision to the Emergency Rule originally passed on April 13th, which created a “rebuttable presumption” that any “First Responder or Front Line Worker” diagnosed with COVID-19 did so in the course and scope of their employment.
On April 13, 2020, the Illinois Workers’ Compensation Commission (IWCC) passed an Emergency Rule to address employees infected with COVID-19.
The Emergency Rule creates a “rebuttable presumption” that employees who contract COVID-19 did so in the course and scope of their employment if they were employed in certain categories of jobs. The Emergency Rule reverses the standard of proof otherwise called for in the Worker’s Compensation Act, as being on the employee to prove every element of his or her claim by a preponderance of the evidence. As a result of the Emergency Rule, the burden of proof is now placed on employers to prove that the COVID-19 illness afflicting the employee did NOT arise out of and in the course of the employment.
The Emergency Rule applies to any “First Responder or Front Line Worker,” which is defined within the new Rule as the following:
“Any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered first responders, health care providers engaged in patient care, correction officers, and crucial personnel identified in the March 20, 2020 Executive Order from Governor Pritzker.”
The Illinois executive order includes a lengthy list of industries/trade/work where the employees are deemed crucial personnel:
- Stores that sell groceries and medicine
- Food, beverage, and cannabis production and agriculture
- Organizations that provide charitable and social services
- Gas stations and business needed for transportation
- Financial institutions
- Hardware and supply stores
- Critical trades (including but not limited to plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and government properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations)
- Mail, post, shipping, logistics, delivery, and pick-up services
- Educational institutions
- Laundry Services
- Restaurants for consumption off-premises
- Supplies to work from home
- Supplies for Essential Business and Operations (Business that sell, manufacture, or supply other Essential Business and Operations with the support or materials necessary to operate, including computers, audio, and video electronics, household appliances; IT and telecommunication equipment; hardware, paint, flat glass; electrical, plumbing and heating material; sanitary equipment; personal hygiene products; food, food additives, ingredients and components; medical and orthopedic equipment; optics and photography equipment; diagnostics, food and beverages, chemicals, soaps and detergent; and firearm and ammunition suppliers and retailers for purposes of safety and security
- Home-based care and services
- Residential facilities and shelters
- Professional services
- Day care centers for employees exempted by this Executive Order
- Manufacture, distribution, and supply chain for critical products and industries (Manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as pharmaceutical, technology, biotechnology, healthcare, chemicals and sanitization, waste pickup and disposal, agriculture, food and beverage, transportation, energy, steel and steel produces, petroleum and fuel, mining, constructions, national defense, communications, as we as products used by other Essential Businesses and Operations)
- Critical labor union functions
- Hotels and motels
- Funeral services
Effective March 30, 2020, Michigan Governor Gretchen Whitmer signed Emergency Rules to create an “absolute presumption” that certain “first response employees” have sustained a personal injury arising out of and in the course of employment, if the first response employee meets any one of the following criteria:
- Is quarantined at the direction of the employer due to confirmed or suspected COVID-19 exposure.
- Receives a COVID-19 diagnosis from a physician.
- Receives a presumptive positive COVID-19 test.
- Receives a laboratory-confirmed COVID-19 diagnosis.
The Michigan Emergency Rules define “first response employee” as any of the following:
- A person working in ambulance operations and advanced mobile emergency care services, county medical care facilities, emergency services, emergency medical services, homes for the aged, hospices, hospital, or nursing homes.
- A person working in home health agencies or visiting nurse association.
- Any person working as a physician, physician assistant, nurse, emergency medical technician, paramedic, or respiratory therapist.
- Any police officers, firefighters, emergency medical technicians, on-call members of a fire department, volunteer civil defense workers, on-call members of a life-support agency or members of an emergency rescue team as defined in the workers disability compensation act.
- A member of the state police or an officer of the motor carrier enforcement division of the department of the state police.
- A state correctional officer or local correctional officer.
The Emergency Rules completely relieves first response employees from proving that they contracted COVID-19 in the course of employment, or that the contraction of the COVID-19 virus arose out of employment.
The rules took effect on March 30, 2020 and shall remain in effect for six months.
To date, there have been no Executive Orders or legislation to expand workers’ compensation benefits to employees who have a positive COVID-19 diagnosis.
On September 17, 2020, the Governor of the State of California signed Senate Bill 1159 into law. The new law updates state worker’s compensation regulations, specifically those connected to the COVID-19 pandemic. These updates include creating guidance for “disputable presumption”, clarifying the definition of an outbreak, offering reporting requirements, and clarifying potential employer compliance penalties.
Here is what you should know about this new worker’s compensation rule for organizations located in the State of California:
“Disputable presumption” of an injury: The term “injury” as used in relation to the California Labor Code now includes illness or death resulting from COVID-19 if the following circumstances apply. This includes:
- Employee has tested positive for or was diagnosed with COVID-19 within 14 days after a day the employee performed labor or services at the employee’s place of employment at the employer’s direction.
- The day on which the employee performed the labor or services was on or after March 19, 2020 and on or before July 5, 2020. The date of injury is the last date the employee performed the labor or services.
- The diagnosis of COVID-19 must be done by a M.D, D.O., Physician Assistant or Nurse Practitioner and the diagnosis confirmed by testing within 30 days of the date of diagnosis.
The injury is presumed to arise out of and in the course of employment. However, this presumption is disputable and may be controverted by other evidence. Liability for a claim of COVID-19 related illness must be rejected within 30 days of the claim form submission or it is presumed compensable.
Definition of an outbreak: The new law includes a definition of an outbreak and instructions for organizations when an outbreak occurs. The law states that an “outbreak” at a place of employment exists when:
- The employer has 100 or fewer employee at a specific place of employment and 4 employees test positive for COVID-19; or
- The employer has more than 100 employees at a specific place of employment and 4% of the number of employees test positive for COVID-19; or
- The specific place of employment is ordered to close by a local health department, the State Department of Public Health, the Division of Occupational Safety and Health or a school superintendent due to a risk of COVID-19 infection.
If the outbreak exists, the compensation available for the “injury” (illness or death result from COVID-19) must include full hospital, surgical, medical treatment, disability indemnity, and death benefits. Paid sick leave available to the employee must be used and exhausted before temporary disability benefits apply. The injury is presumed to arise out of and in the course of employment, but is disputable.
Employers disputing the presumption may provide evidence of measures taken to reduce the potential transmission of COVID-19 in the work place and evidence of the employee’s non-occupational risks of COVID-19 infection. If compensability for the claim is not rejected within 45 days, the illness is presumed compensable.
Reporting requirements: Moving forward, employers should note the following reporting requirements:
Employers who meet the qualifications under the outbreak definition are required to report to their claims administrator within 3 business days the following:
- An employee has tested positive without any personally identifiable information regarding the employee unless the employee asserts the infection is work related or has filed a claim.
- The date the employee tested positive (date of specimen collection).
- The specific address or addresses of the employee’s employment during the 14-day period preceding the date of the positive test
- The highest number of employees who reported to work at the employee’s specific place of employment in the 45 day period preceding the last day the employee worked at each specific place of employment.
If an employer is going to dispute a claim, they should have the follow documentation in place: (1) Measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment, (2) the employee’s non-occupational risks of COVID-19 infection, (3) statements made by the employee, and (4) any other evidence normally used to dispute a work-related injury.
- Dates of injury before July 6, 2020, the claim administrator has 30-days to deny the claim.
- Dates of injury on or after July 6, 2020, the claim administrator has 45-days to deny the claim.
If the employee is an “essential employee” then the 30-day denial period applies regardless of the date of injury.
Employers who submit false or misleading information or fail to submit the required information are subject to a civil penalty of up to $10,000.00.
It should be noted that a claim is not part of an outbreak, if it occurs during a continuous 14 day period where the requisite number of positive cases have not been met as included in the definition of “outbreak”.
The new regulation remains in effect until January 1, 2023.