Workers’ compensation presumption legislation for EMS personnel amended, COVID-19 presumption bills advance

January 26, 2021

As previously reported, several pieces of legislation that propose changes to the Virginia’s Workers’ Compensation Act with potentially significant impact to local governments have been filed. On January 25, the Senate Commerce and Labor Committee reviewed bills that would expand the list of illnesses considered conditions currently presumed to be an occupational disease when developed by certain public employees and therefore covered by the Virginia Workers’ Compensation Act. VACo staff advocated to retain local authority for one category of presumptions and urged additional state support for another.

SB 1275 (Marsden) adds salaried or volunteer emergency medical services (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. As originally written, this would have mandated local governments to cover this presumption. In committee, VACo staff testified that though it was not opposed to the intent of the bill, VACo’s position is opposition to adding more workers’ compensation presumptions specifically for county employees or county supported employees without additional state funding assistance to local governments to offset additional insurance liabilities. Committee discussion focused on the fiscal impact of adding this presumption and the unique situation of volunteer EMS personnel, whose hours and service may vary between localities. The bill was amended in Committee to add the presumption for both salaried and volunteer EMS personnel operating in a locality that has legally adopted a resolution declaring that it will provide one or more of the presumptions and establishes a minimum hours worked requirement. As amended, this language retains flexibility to local governments to determine whether to add these presumptions, the types of employees covered, and any additional requirements in regard to service hours. VACo thanks the patron and the committee for these changes that makes the bill very similar to HB 1818 (Heretick), which had already been amended to address these concerns, but does not specifically contain language that requires local resolutions to contain an hours worked requirement.

The committee also heard additional legislation establishing workers’ compensation presumptions related to COVID-19. SB 1342 (Vogel) establishes a presumption that COVID-19 causing the death or disability of firefighters, EMS personnel, law-enforcement officers, and correctional officers is an occupational disease compensable under the Workers’ Compensation Act. For a presumption to apply, the bill requires a positive diagnostic test for COVID-19 and failure or refusal by a person subject to undergo such immunization shall disqualify the person from any presumption or 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. Though the intent of this legislation may be well-meaning, VACo staff expressed concerns 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 in which they are struggling to provide essential and expanded services to respond to the impacts of the pandemic. VACo staff noted that the patron of the bill introduced a budget amendment placeholder, and strongly urged that if the committee voted to advance the bill, that the Senate Finance 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 Committee reported and referred the bill unanimously, 15-0, to Senate Finance. This bill has a companion in the House – HB 2207 (Jones) – which will be heard by the House Appropriations Committee’s Compensation and General Government Subcommittee on January 26.

The committee also considered similar legislation that is narrower in scope. SB 1375 (Saslaw) establishes a retroactive presumption for COVID-19 limited to firefighters and EMS personnel, however, the bill does not specifically require documentation of positive diagnosis. Though the legislation would likely have a smaller fiscal impact, VACo staff have the same concerns regarding the bill, and urge the use of federal relief funding allocated to state should it be enacted. The committee also reported and referred the bill unanimously, 15-0, to Senate Finance.

VACo Contact: Jeremy R. Bennett

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