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Volume X, Number 194

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States Create Presumptions for Essential Workers to Become Eligible for Workers’ Compensation Benefits During Pandemic

A number of states have recently passed or proposed amendments to their workers’ compensation statutes (or have issued other authority) to make it easier for healthcare workers, first responders, and other essential workers to receive workers’ compensation benefits in connection with COVID-19. These measures generally do so by providing a presumption of coverage for certain employees who test positive for, are impacted by or exposed to, the virus causing COVID-19. In many of these states, the presumption is rebuttable; however, in some states, the presumption is conclusive.

Ten states have implemented authoritative changes (Alaska, Arkansas, Kentucky, Michigan, Minnesota, Missouri, North Dakota, Utah, Washington, and Wisconsin), eight states have similar legislation pending (California, Louisiana, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, and Vermont), and government figures in other states have alluded to the possibility of similar proposals. One proposal picking up steam is Governor Gavin Newsom’s reported consideration of an executive order that would provide an automatic presumption of coverage for essential workers in California. Adding to the list of California proposals is Assemblywoman Lorena Gonzalez’s April 28, 2020, announcement of her intention to amend an existing bill with language that conclusively presumes essential workers with COVID-19 contracted the disease at their workplaces. The measure would allow workers to be compensated for their hospital stays, medical treatments, disability indemnity, or surgeries, and would disburse death benefits if the disease were fatal. It has been reported that grocery, retail, warehouse, and transportation workers, as well as other employees deemed essential during the pandemic, would qualify for workers’ compensation pursuant to the amendment.

In addition, the Illinois Workers’ Compensation Commission (IWCC) implemented an emergency amendment to the workers’ compensation rules on April 13, 2020, to create a rebuttable presumption of compensable occupational injury for first responders or essential front-line workers (as broadly defined in Executive Order 2020-10). However, a Sangamon County circuit judge recently issued a temporary restraining order barring enforcement of the Illinois emergency amendment. Thereafter, on April 27, 2020, the IWCC repealed the emergency rule.

In general terms, compensability for a workers’ compensation claim will be determined on a case-by-case basis and subject to each state’s specific laws related to coverage and the employee’s burden of proof. Determining whether an employee was exposed to COVID-19 while at work and whether the employee’s claim is compensable generally will hinge on whether the employee’s condition arose out of and in the course and scope of employment, as well as whether the infection was caused by conditions peculiar to the work such that the work created a greater risk of contracting the illness and in a different manner than that faced by the public in general.

Establishing a presumption of compensability for certain essential workers during the pandemic is a growing trend among states and would significantly lessen an employee’s burden of proving that a COVID-19-related illness is compensable under workers’ compensation laws. Details of these state law amendments vary. For more detail and the latest developments, please refer to our Workers’ Compensation Coverage chart.

Critical information for employers is also available via the firm’s webinar programs.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 120

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About this Author

W. Kyle Dillard Labor & Employment Litigation Attorney Ogletree Deakins Law Firm Greenville South Carolina
Shareholder

Mr. Dillard is a shareholder in Ogletree Deakins’ Greenville, South Carolina office, where he has practiced since 2003. Mr. Dillard has extensive litigation experience including state and federal courts and in the arbitration context. His primary area of focus with respect to Ogletree Deakins’ Labor and Employment Practice is ERISA litigation. In that capacity, Mr. Dillard has defended clients in a variety federal district courts against claims arising under long-term and short-term disability, healthcare and employee stock ownership plans. Mr. Dillard is also Ogletree...

864.271.1300
S. Michael Nail Employment Litigation Attorney Ogletree Deakins Greenville, SC
Associate

Michael embraces challenges and enjoys assisting clients navigate unique legal issues. Michael represents employers in a variety of labor & employment litigation, including suits under Title VII, the ADA, the ADEA, the FLSA, and other anti-discrimination laws and employment-related torts. Michael also counsels managers and human resources professionals on day-to-day employment matters. Michael also maintains a niche practice by defending the interests of clients in all aspects of workers’ compensation claims before the South Carolina Workers’ Compensation Commission.

In addition to the Labor and Employment practice for which the firm is well known, Michael also represents the interests of clients in construction litigation, and a variety of other general litigation matters. Michael ensures client responsiveness and effectively manages a litigation team best suited for the client’s needs.

Michael, a native of Greenville, received his undergraduate degree in business from the University of South Carolina’s Darla Moore School of Business. While in law school, Michael gained a variety of experiences, including a clerkship with Magistrate Judge James R. Klindt of the United States District Court for the Middle District of Florida and the South Carolina Office of the Attorney General. Michael was also an active participant on the nation’s top-ranked moot court team, winning Second Best Oral Advocate Overall in a spring 2013 national competition.

Outside of work, Michael enjoys cheering on the Gamecocks, taking on a variety of fitness challenges, and spending time with his wife, Sarah, and their four children.

Practice Groups

  • Employment Law
  • Litigation
  • Wage and Hour
864-271-1300