September 25, 2020

Volume X, Number 269

September 25, 2020

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September 24, 2020

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September 23, 2020

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Connecticut Executive Order Presumes Eligibility for Workers’ Compensation for Certain Employees Diagnosed with COVID-19

The Connecticut Workers Compensation Act (Act) provides wage replacement and medical benefits for employees who suffer a work-related injury or illness, including certain occupational diseases (defined in the Act to mean “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment”). Proving an occupational disease arose out of employment can be difficult to do for highly contagious, long-incubation, community-spread diseases like COVID-19. 

On July 24, 2020, Governor Ned Lamont made it much easier for certain employees to claim workers’ compensation benefits as a result of contracting COVID-19. Executive Order No. 7JJJ (Order) creates a rebuttable presumption that employees who missed a day or more of work between March 10, 2020 and May 20, 2020 due to a COVID-19 diagnosis or symptoms later diagnosed as COVID-19 can receive workers’ compensation benefits. 

The rebuttable presumption arises when four criteria are met:

  1. At the direction of his or her employer, the employee worked outside of the home during at least one of the 14 days immediately preceding the date of injury and did not receive an offer or directive from his or her employer to work from home;
  2. If the date of the injury was more than 14 days after March 23, 2020, the employee worked for an “essential” employer as defined by the Connecticut Department of Economic and Community Development;
  3. COVID-19 was confirmed by a positive test result or diagnosed and documented by a doctor within three weeks of the date of injury; and
  4. The positive test result or written diagnosis is presented to the employer or insurer.

Under the Order, the “date of injury” means the date the employee was first unable to work (or died) between March 10 and May 20, 2020. Under the Order, an employee need not show any work-related connection to the COVID-19 diagnosis, other than proof of contracting the disease during the relevant time. Once these elements are shown, an employer or insurer may rebut the presumption by demonstrating by a preponderance of evidence that the employee’s employment was not the cause of the employee contracting COVID-19.

The Order provides an offset to wage replacement benefits for any emergency paid sick leave granted under the Families First Coronavirus Response Act (FFCRA) or any other paid sick leave program available in response to COVID-19. Other accrued paid leave, however, does not offset the employee’s recovery.

The Order also creates a cause of action if an employer “deliberately misinforms or otherwise deliberately dissuades an employee from filing a claim for workers’ compensation benefits.” 

The Order raises several takeaways for employers. First, employers that required any employee to work outside of home between March 10, 2020 and May 20, 2020 may wish to consider possible COVID-19 workers’ compensation claims from their employees and consult with their workers’ compensation carriers about evidence preservation and other proactive steps. Second, employers that provided paid FFCRA sick leave may be able offset an employee’s workers’ compensation payments by the amount the employee received in such paid sick leave payments. Lastly, employers may wish to keep in mind the new retaliation protections in the Order and plan accordingly. 

While the information contained in this material provides a general overview of the law, each employer will likely face unique business and employment-related challenges and issues as they relate to these changes. Therefore, to ensure compliance with the law, employers are encouraged to seek competent legal counsel when responding to employee inquiries or considering changes to business operations as a result of the coronavirus.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 226

TRENDING LEGAL ANALYSIS


About this Author

Britt-Marie Cole-Johnson Labor & Employment Attorney
Partner

Britt-Marie Cole-Johnson is a member of the firm's Labor, Employment, Benefits + Immigration Group. She focuses her practice on counseling private sector employers, ranging from NYSE and NASDAQ companies, multi-national corporations, nonprofit health care organizations, and educational institutions to manufacturers, in all areas of employment law. She handles sensitive, high-risk personnel issues and investigations as well as compliance and training.

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Matthew Miklave Labor Employment Lawyer
Partner

Matthew Miklave has more than three decades of experience as a labor, employment, and civil rights attorney, and has served as a litigator, counselor, and contract negotiator throughout his career. He is a member of the firm’s Labor, Employment, Benefits + Immigration Group.

Labor, Employment, and Civil Rights

For more than 30 years, Matt has represented employers and management in all areas of employment, civil rights, and traditional labor law, including issues arising under federal and state anti-discrimination and anti-retaliation statutes; non-compete agreements and other post-employment restrictions; wage and hour investigations and litigation; multi-employer pension plan withdrawal liability and administration; collective-bargaining negotiations, administration and enforcement proceedings; corporate restructurings, reorganizations and plant closings; and employment practices and policies.

Among other precedential matters, Matt represented the NYNEX Corporation and New York Telephone Company before the New York Court of Appeals in a case establishing that a breach of contract action cannot be brought based on the breach of an employment handbook when that handbook contains a disclaimer (Lobosco v. NYNEX). He successfully defended the County of Westchester before the Southern District of New York and the Second Circuit Court of Appeals in a case involving Constitutional claims arising from the criminal arrest and “Perp Walk” of correction officers (Caldarola v. County of Westchester). Matt also successfully represented the Hertz Corporation and Hertz Equipment Rental Corporation in a lawsuit seeking to enforce the post-employment restrictions of its former employees, a case resulting in a six-figure settlement in favor of the plaintiff companies (Hertz Corp. and Hertz Equipment Rental Corp. v. Mummendey, Ercolano and Ahern Equipment Rental Corp.)

Labor and Employment Relations

Matt represents employers and management in labor relations matters. He serves as lead labor negotiator for a Fortune 50 corporation; defends employers before state and federal trial courts and administrative agencies; and advises employers on all aspects of employee relations and human resources matters.

Prior to joining Robinson+Cole, Matt was a partner with a national employment law firm based in New York City and Stamford, Connecticut. He also served as counsel to the National Labor Relations Board, in Washington, D.C.; as trial attorney to the NLRB's Regional Office in Brooklyn, New York; and as hearing officer in numerous union-management representation matters.

Matt regularly lectures nationally and internationally on a variety of employment, labor, and civil rights-related topics. Along with two other Robinson+Cole lawyers, he authors the Manufacturing Law Blog, one of the first blogs in the country to address legal issues facing manufacturers and distributors. He is on the adjunct faculty of LawLine.com, an online provider of continuing legal education programs.

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Abby Warren Labor and Employment Attorney
Associate

Abby Warren is a member of the firm's Labor, Employment, Benefits + Immigration Group, where she represents employers in labor and employment matters. She focuses her practice on counseling private sector employers, including multinational corporations, health care organizations, educational institutions, and manufacturers, in all areas of employment law. Abby also defends employers in federal and state court and before administrative agencies. In addition to counseling and litigation, she provides workplace training for clients and conducts workplace investigations.

...

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Emily A. Zaklukiewicz Labor and Employment Attorney Robinson & Cole Hartford, CT
Associate

Emily A. Zaklukiewicz focuses her practice on counseling private sector employers in all areas of labor and employment law and defending employers in federal and state court and before administrative agencies. She is a member of the firm’s Labor, Employment, Benefits + Immigration Group. 

Emily graduated first in her law school class, serving as the Managing Editor of Stetson Law Review, as an Associate Editor of the Journal of International Aging Law & Policy, and as a committee member on the Student Leadership Development Committee. She was also a member of...

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