Workers’ compensation legislation with local impact advances

January 19, 2021

Legislation that proposes several changes to the Virginia’s Workers’ Compensation Act with potentially significant impact to local governments have been filed and heard in subcommittee. On January 19, the House Labor and Commerce Committee’s Subcommittee #1 reviewed bills that would expand the list of presumptive illnesses for certain public employees covered under the Virginia Workers’ Compensation Act.

HB 2207 (Jones) establishes a presumption that COVID-19, causing the death or disability of firefighters, emergency medical services (EMS) personnel, law-enforcement officers, and correctional officers, is an occupational disease compensable under the Workers’ Compensation Act. The bill provides that such presumption applies to any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after March 12, 2020, and prior to December 31, 2021, and that the claimant received a diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment. The bill allows that the presumption would not apply to any eligible employee who refused a vaccine requirement.

Though the intent of this legislation may be well-meaning, VACo staff expressed concerns to the Subcommittee that an expansion of workers’ compensation presumptions for COVID-19, in addition to other recent changes last year in the benefits program, could result in substantial fiscal impacts to state and local governments at a time they are struggling to provide essential and expanded services to respond to the impacts of the pandemic.

Furthermore, creating a presumptive workers’ compensation standard for a community spread disease introduces a level of liability unprecedented for the infectious disease presumption section of the Virginia Workers’ Compensation Act. Whereas existing presumptive infectious diseases such as hepatitis or HIV are linked to a documented exposure to blood or bodily fluids, documenting exposure to COVID-19 poses its own challenges. Generally, workers’ compensation does not cover community-spread illnesses like a cold or the flu because they usually cannot be directly tied to the workplace. Though COVID-19 can impact the health of individuals more drastically than either of these illnesses, the same principle applies. It is difficult to determine exactly when and where an individual may have contracted COVID-19, and whether that was in the course of normal employment or through individual actions of the employee outside of the workplace and the control of the employer.

Local governments and risk insurance providers have not budgeted for an expansion of liability to cover additional presumptions related to COVID-19. Many do not yet know if the number of infections will continue to increase or when a vaccine for the virus will become fully distributed. Furthermore, the potentially unknown latent effects of COVID-19, may include lifetime side effects that would need to be treated under a lifetime workers’ compensation medical award. All of these unknowns create additional liabilities with significant fiscal impact to local governments. For these reasons, VACo staff reiterated that passage of any legislation that expands presumptions to include COVID-19 be done only if in concert with additional state funding assistance to local governments to offset additional costs through risk insurance.

VACo staff noted that the patron of the bill introduced a budget amendment placeholder, and strongly urged that if the Subcommittee voted to advance the bill, that the House Appropriations Committee consider the use of remaining unobligated or authorized but unallocated federal relief funding to ensure that local governments are not hit with this unexpected cost. The Subcommittee recommended to report the bill by a 6-2 vote. A senate companion of this legislation has been filed – SB 1375 (Saslaw) – and referred to the Senate Commerce and Labor Committee.

The Subcommittee also considered additional legislation that would address heart and hypertension presumptions for emergency medical services personnel. HB 1818 (Heretick), as originally written, would have mandated the addition of salaried or volunteer EMS personnel to the list of persons to whom, after five years of service, the occupational disease presumption for death caused by hypertension or heart disease applies. In that form, VACo would not be opposed to the intent of this legislation, however, VACo would be opposed to adding additional workers’ compensation presumptions specifically for county employees or county supported employees with without additional state funding assistance to local governments to offset additional insurance liabilities. HB 2080 (Convirs-Fowler) as originally written would similarly add presumptions for hypertension or heart disease, but only apply to full-time salaried EMS employees employed by any locality that has opted to provide such a presumption via ordinance. After deliberation of both bills, the Subcommittee incorporated HB 2080 into HB 1818, and language was substituted to apply the presumption to both salaried and volunteer EMS, but with the addition of the language from HB 2080 preserving local option via ordinance. VACo staff expressed thanks to the patrons and the subcommittee for their efforts to prevent an unfunded mandate to local governments. A senate companion – SB 1275 (Marsden) – to HB 1818 as it was originally written has been filed and referred to the Senate Commerce and Labor Committee.

VACo staff will continue to advocate and provide updates on workers’ compensation legislation with direct impact to local governments.

VACo Contact: Jeremy R. Bennett

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