By: Lauren N. Harvey
Effective April 8, 2020, this new law states that certain employees who have contracted COVID-19 are presumed to have an occupational disease arising out of and in the course of employment if the employee meets certain requirements. The law is in effect for those who contract COVID-19 through May 1, 2021.
Two criteria must be met for this presumption. First, the employee must be employed in one of the following occupations to qualify for this presumption:
- a licensed peace officer, firefighter, paramedic, or emergency medical technician;
- a nurse or health care worker, correctional officer or security counselor employed by the state or a political subdivision at a corrections, detention, or secure treatment facility;
- a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units; or
- a person required to provide child care to first responders and health care workers.
Second, the employee’s contraction of COVID-19 must be confirmed by a positive laboratory test, or if a test was not available, as diagnosed, based on the employee’s symptoms, by either a licensed physician, physician’s assistant, or advanced practice registered nurse. A copy of this positive test or diagnosis must be provided to the employer or workers’ compensation insurer.
If both requirements are met, the employer or insurer shall only rebut the presumption that the employee’s contraction of COVID-19 is an occupational disease by showing the employee’s employment was not a direct case of the disease. The employer has the burden of proving by a preponderance of the evidence, that while performing his or her job duties, the employee was not exposed to COVID-19 or the exposure to COVID-19 could not have been a cause of the employee’s illness. If the insurer denies liability, the denial must meet the requirements for denials under the statute.
The date of injury for a COVID-19 matter is the date either the employee was unable to work due to contraction or was unable to work due to symptoms that were later diagnosed as COVID-19, whichever occurred first.
An employee who has COVID-19 but does not fall into one of the occupations listed can still claim a workers’ compensation injury or occupational disease if they believe their illness is due to their employment.