The Legislature rushed to pass S.342 in the closing days before recessing Friday until August 25. The bill would create a rebuttable presumption that COVID-19 is a compensable workplace illness across all sectors, although the bill defines “front-line” workers who would have the stronger presumption, while employers of non “front-line” workers would have more options to avoid or overcome the presumption. There are serious concerns with this legislation (read the text of the bill as passed here), but one of the key takeaways from the bill is that employers should be sure not only follow the ACCD guidelines for safe and health operations, but to document their compliance, as discussed below.
Triggering a Rebuttable Presumption
For the presumption, a “front-line” worker must have tested positive or been diagnosed with COVID-19 between March 1, 2020 and January 15, 2021.
Non “front-line” workers must have tested positive or been diagnosed with COVID-19 between April 1, 2020 and January 15, 2021, and within 14 days of either:
- having had a documented occupational exposure in the course of employment to an individual with COVID-19, or
- having performed services at a residence or facility with one or more residents or employees who were present at the time the services were performed and either had COVID-19 at that time or themselves tested positive for COVID-19 within 14 days after the services were performed.
Overcoming the Presumption
For a “front-line” worker, any case of COVID-19 would be presumed to be compensable under workers’ compensation unless the employer can demonstrate by a preponderance of the evidence that the worker contracted COVID-19 outside of the course of employment. However, as a practical matter that could be extremely difficult given the inherent uncertainty of where someone will have contracted this particular disease.
Employers of non “front-line” workers would have additional options for avoiding this presumption. In addition to demonstrating that COVID-19 was contracted outside of the course of employment, the employer can also demonstrate that, at the time the employee was potentially exposed to COVID-19, the employee’s place of employment was in compliance with relevant safety guidelines.
Different guidelines would cover different time periods. Between April 1 and April 20, 2020, the applicable guidelines would be COVID-19 related guidance for businesses and workplaces issued by the CDC and the Vermont Department of Health and any similar guidance issued by local or municipal authorities. Between April 20, 2020 and January 15, 2021, the applicable guidelines would be the Restart Vermont Worksafe Guidance issued by the Agency of Commerce and Community Development, and any similar guidance issued by local or municipal authorities.
Defining a “Front-Line” Worker
The bill defines “front-line” workers through a combination of both job category and the exposure risks of their actual duties. To qualify for the presumption as a “front-line” worker, the worker must first have one of the following jobs:
- law enforcement officer
- emergency medical personnel and volunteer personnel
- worker in a health care facility or in an institution or office where health care services are provided by licensed healthcare professionals
- correctional officer
- worker in a long-term care facility or residential care facility
- childcare provider
- home health care worker or personal care attendant
- worker in a morgue, funeral establishment, or crematory facility
- or a worker performing services that the Department of Labor determines place the worker at a similarly elevated risk of being exposed to or contracting COVID-19 as the other occupations above
Second, to qualify as a “front-line” worker, the worker’s actual duties must also require the worker to have regular physical contact with known sources of COVID-19 or regular physical or close contact with patients, inmates in a correctional facility, residents of a residential care or long-term care facility, or members of the public in the course of their employment.
Concerns with the Bill
AIV opposed this legislation, and we helped coordinate testimony and general opposition across a wide range of stakeholders and organizations. Concerns expressed about the bill included:
- It creates uncertainty and unreasonable cost risks for private and public employers during a period when so many are struggling to recover and continue operating and employing Vermonters.
- It comes at a time when state and federal laws and regulations have already been enacted to address both healthcare costs and wage replacement needs for those who become ill with COVID-19 and cannot work, support that we all recognize as critical. Moreover, Vermont’s workers’ compensation laws can already recognize legitimate work-related cases of COVID-19.
- Workers’ compensation is supposed to address truly work-based injuries. Presumptions, especially for non-physical injuries that are commonly unrelated to the workplace, are always problematic.
- Vermont businesses are required to follow reopening and operating guidelines that are designed specifically to avoid contagion and protect the health of Vermont workers we all value and depend upon, making many workplaces arguably among the least likely places to contract COVID-19.
- As a wide array of social interactions and other, more risky exposure pathways continue to open and expand, imposing a potential presumption that any given infection occurred in the workplace is increasingly unreasonable and betrays the purpose and the credibility of the workers’ compensation system.
- Relatively few states have created new presumptions for workers’ compensation liability for COVID-19 even in the highest-risk jobs, and only two have taken steps as far reaching as S.342 would impose.
- With state and federal protections already in place for healthcare and wage replacement for Vermonters who become ill during this crisis, adding new COVID-19 liabilities to workers’ compensation is unnecessary and creates unreasonable risks for public and private employers and the working Vermonters and their families who depend on their recovery and survival.
Mitigating Provisions/Where to Go from Here
The provision for employers of non “font-line” workers to overcome the presumption of compensability by demonstrating compliance with relevant health and safety guidance was included by the House Committee on Commerce and Economic Development in response to concerns raised by AIV and other stakeholders. Unfortunately, this defense was not made available to employers of “front-line” workers.
While all employers should have been complying and should continue to comply with these guidelines, this is an untested defense and it is not yet clear how it will work out in practice. AIV would strongly recommend that employers not only follow these guidelines, but do their best to document such compliance. We will be working with the Department of Labor and ACCD to clarify how employers can best demonstrate the compliance required for this defense.
Another provision that stemmed from recommendations of AIV and others is the requirement of a report from the Department of Financial Regulation on the possible creation of a special fund, possibly drawing upon federal assistance, to help offset the cost of COVID-19 claims on the workers’ compensation system. AIV and our partners recommended including such a fund in the legislation up front, but we will be working along with others with DFR to explore this possibility and pursue related legislation in August as warranted.
Again, AIV strongly recommends that all employers not only comply with ACCD and related guidance for safe and healthy operations but also document their efforts. We will be following up with any warranted updates on clarifying how this can be demonstrated for the purposes of workers’ compensation, as well any progress in developing a fund to help offset COVID-19 related costs to the workers’ compensation system. In the meantime, however, please do not hesitate to contact us at email@example.com for more information about this legislation and related efforts.