Supplemental Update on Special Legislative Session: COVID-19 Presumption

[UPDATE]

It appears that the COVID-19 presumption legislation has been set aside by the Senate. After extremely contentious proceedings in the House of Delegates, the bill was passed by the House on a largely partisan vote, and sent to the Senate. The expectation was that this bill would proceed in similarly contentious-yet-inevitable fashion in the Senate. However, in the first Committee hearing, before the Commerce and Labor Committee, on September 16, 2020, the bill was immediately, and unanimously, referred to the Senate Finance Committee without any debate or comment. On September 24, 2020, the Senate Finance Committee voted to pass the bill by indefinitely, by a vote of 15 to 1.

The apparent reason for this decisive defeat was expense, both to localities, which reported the likely financial impact of this bill as potentially reaching into the millions of dollars for larger localities, and to the Commonwealth, which by some estimates was potentially facing a financial impact of up to $100,000,000.00 from passage of this bill. In a year where the General Assembly was called into special session to address an already-substantial budget deficit due to revenue shortfalls related to the pandemic, it appears that the Senate was not prepared to add to the budgetary constraints.

We expect to see this subject arise again in the regular session next year, perhaps with a pared down version of the presumption, applicable to more narrow classes of workers. For this year, however, it appears that the push to create a COVID-19 workers’ compensation presumption has reached an end point.

[PREVIOUS UPDATE]

On August 18, 2020, the Virginia General Assembly convened a special legislative session called for by Governor Northam to address issues related to “adopting a budget based on the revised revenue forecast and consideration of legislation related to the emergency of COVID-19 and criminal and social justice reforms.”

There is one significant workers’ compensation issue before the General Assembly this session: should COVID-19 claims be presumed work related for certain employees who could be considered particularly at risk?

There were three bills introduced at the beginning of the session: HB 5028 in the House of Delegates and SB 5022 and SB 5066 in the Senate. SB 5022 has since been incorporated into SB 5066, leaving two bills that are nearly identical. It is extremely important to note that both bills provide that they would provide a presumption that would go into effect retroactively dating back to January 1, 2020.

HB 5028 would amend §65.2-402.1 to add a subsection B that provides a presumption that COVID-19 causing death, or any health condition or impairment resulting in total or partial disability is an occupational disease for: firefighters (as defined by §65.2-102); law enforcement officers (as defined by §9.1-101); first responders (as defined by §65.2-104); health care providers (as defined by §8.01-581.1) [Update 8/31/2020 this bill has been amended to provide the presumption for a health care provider “who as part of his employment is directly involved in diagnosing or treating persons known or suspected to have COVID-19.”]; or correctional officers (as defined under §53.1-1).

SB 5066 would amend §65.2-402.1 to add a subsection B that provides a presumption that COVID-19 causing death, or any health condition or impairment resulting in total or partial disability is an occupational disease for: firefighters (as defined by §65.2-102); law enforcement officers (as defined by §9.1-101); first responders (as defined by §65.2-104); health care providers (as defined by 8.01-581.1); or school board employees (this term is not defined).

The presumption in both bills would work similarly to other disease presumptions, in that the claimant must first prove they are employed in one of the applicable jobs, and must prove a diagnosis of COVID-19 causing death or disability. Once those elements are established, the statute creates the presumption of a compensable occupational disease, which may be rebutted by showing that the COVID-19 was caused by some other exposure and not by the employment.

One major difference between the COVID-19 presumption and the other infectious disease presumption is that the COVID-19 presumption requires no “documented exposure” to COVID-19.

Each of the two bills also provides a pre-employment physical provision that is similar to other such provisions. If the employee seeking the benefit of a presumption was asked to perform a pre-employment physical that included appropriate COVID-19 testing, the presumption would not apply to a claimant who had a positive COVID-19 test in that physical. This provision, however, will only apply to persons hired after January 1, 2021.

The question of who is covered by these bills can be difficult to navigate, as most of the jobs that are covered are defined by reference to a definition in another statute. As presently written, the new presumption bill would, for the first time provide a disease presumption for non-government employees. At the bottom of this update, you can find the definitions for each of the categories of workers who would be entitled to a presumption that COVID-19 is an occupational disease.

These bills are progressing through the General Assembly with very little resistance. Committee votes to date have been overwhelmingly in favor of advancing the bill. Based on the progress of these bills to date, we do expect to see a COVID-19 presumption bill pass, in substantially similar form to their present language.

We will continue to monitor the special session and provide updates and client guidance as the session continues.

Definitions of the classes of covered employees under the proposed legislation:

§65.2-102: “Firefighter” means all (i) salaried firefighters, including special forest wardens designated pursuant to § 10.1-1135, emergency medical services personnel, and arson investigators and (ii) volunteer firefighters and emergency medical services personnel, if the governing body of the political subdivision in which the principal office of such volunteer fire company or volunteer emergency medical services agency is located has adopted a resolution acknowledging such volunteer fire company or volunteer emergency medical services agency as employees for purposes of this title.

§9.1-101 “Law-enforcement officer” means any full-time or part-time employee of a police department or sheriff’s office which is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth, and shall include any (i) special agent of the Department of Alcoholic Beverage Control; (ii) police agent appointed under the provisions of 56-353; (iii) officer of the Virginia Marine Police; (iv) conservation police officer who is a full-time sworn member of the enforcement division of the Department of Game and Inland Fisheries; (v) investigator who is a full-time sworn member of the security division of the State Lottery Department; (vi) conservation officer of the Department of Conservation and Recreation commissioned pursuant to 10.1-115; (vii) full-time sworn member of the enforcement division of the Department of Motor Vehicles appointed pursuant to 46.2-217; or (viii) animal protection police officers employed under 15.2-632. Part-time employees are those compensated officers who are not full-time employees as defined by the employing police department or sheriff’s office.

§65.2-104 “first responder” shall include any person referenced in subdivision 1 l of the definition of “employee” in § 65.2-101 who provides emergency services, during the period that the states of emergency defined in subsection A are in effect.

§65.2-101 (1)(l). Except as provided in subdivision 2 of this definition, volunteer firefighters, volunteer emergency medical services agency personnel, volunteer law-enforcement chaplains, auxiliary or reserve police, auxiliary or reserve deputy sheriffs, members of volunteer search and rescue organizations, volunteer members of regional hazardous materials emergency response teams, volunteer members of community emergency response teams, and volunteer members of medical reserve corps, who shall be deemed employees of (i) the political subdivision or public institution of higher education in which the principal office of such volunteer fire company, volunteer emergency medical services agency personnel, volunteer law-enforcement chaplains, auxiliary or reserve police force, auxiliary or reserve deputy sheriff force, volunteer search and rescue organization, regional hazardous materials emergency response team, community emergency response team, or medical reserve corps is located if the governing body of such political subdivision or public institution of higher education has adopted a resolution acknowledging those persons as employees for the purposes of this title or (ii) in the case of volunteer firefighters or volunteer emergency medical services personnel, the fire companies or emergency medical services agencies for which volunteer services are provided whenever such companies or squads elect to be included as an employer under this title.

§8.01-581.1 “Health care provider” means (i) a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis; (ii) a professional corporation, all of whose shareholders or members are so licensed; (iii) a partnership, all of whose partners are so licensed; (iv) a nursing home as defined in 54.1-3100 except those nursing institutions conducted by and for those who rely upon treatment by spiritual means alone through prayer in accordance with a recognized church or religious denomination; (v) a professional limited liability company comprised of members as described in subdivision A 2 of 13.1-1102; (vi) a corporation, partnership, limited liability company or any other entity, except a state-operated facility, which employs or engages a licensed health care provider and which primarily renders health care services; or (vii) a director, officer, employee, independent contractor, or agent of the persons or entities referenced herein, acting within the course and scope of his employment or engagement as related to health care or professional services.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

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