NCCI is tracking legislation to establish or extend workers compensation presumptions for COVID-19 for certain workers.

In 2020, nine states enacted COVID-19 presumption legislation (Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin, and Wyoming.) Many of the COVID-19 workers compensation presumptions are temporary in nature.

This year several of the states that enacted COVID-19 presumption legislation in 2020 are taking additional action to extend and/or expand those presumptions. For example:

– – Vermont enacted legislation (S 9) extending the workers compensation COVID-19 presumption provisions for an employee receiving a positive diagnosis or test between April 2020 and “30 days following the termination of the state of emergency.”
– – Illinois recently enacted legislation (HB 4276) extending the COVID-19 presumption provisions through June 30, 2021
– – Alaska, Minnesota, and Wisconsin are considering legislation to extend their presumptions, expand the types of workers covered under their presumptions, and/or apply their presumptions retroactively

In 2021, additional states, including Connecticut, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Texas, and Virginia, are considering establishing new workers compensation presumptions for COVID-19 for certain workers.

And new trends are emerging. While many of the bills monitored in 2020 focused on establishing presumptions that were applicable primarily to first responders and/or healthcare workers, several of the current legislative proposals establish presumptions for additional categories of workers. For example:

– – Legislation in Maryland, Minnesota, and Texas would establish presumptions for teachers/school employees
– – Legislation in Montana and Texas would establish presumptions for nurses (as a separate category from healthcare workers)
– – Legislation in Connecticut and Iowa would establish presumptions applicable to all employees in the state In 2021, several states have proposed legislation to create workers compensation presumptions of compensability that could be applicable beyond the current COVID-19 pandemic.
– – To date, at least 12 states (Alaska, California, Connecticut, Florida, Iowa, Michigan, Missouri, New Mexico, New York, Rhode Island, Texas, and Washington) have introduced legislation that would establish workers compensation presumptions for infectious diseases and pandemics.
– – While several of these bills specifically mention COVID-19, these proposals also contain terms such as “contagious disease,” “COVID-19 or similar disease,” or “other future qualifying pandemic.” This could mean that the presumption would still be applicable even after the current COVID-19 pandemic ends.
– – Many of these proposals do not include sunset provisions or expiration dates, so they may not be temporary in nature.

Some states have introduced legislation addressing the impact of COVID-19 on the workers compensation exclusive remedy:

– – Hawaii introduced legislation (HB 1224/SB 1415) that proposed an exception to the workers compensation exclusive remedy when an employee, whose employer failed to maintain adequate workplace protections against exposure to COVID-19, contracts the virus
– – The Hawaii legislation also created a presumption that COVID-19 is proximately caused by an employer’s failure to maintain adequate workplace protections. (The Hawaii bills did not make a procedural legislative deadline and are unlikely to advance this legislative session.)
– – Other states, including Arkansas and West Virginia, have also introduced legislation addressing COVID-19 and the exclusive remedy, providing that workers compensation is the exclusive remedy for COVID-19 claims.