Perspectives: Tips for rebutting COVID-19 presumptionPosted On: Jun. 1, 2021 12:00 AM CST
Numerous states have enacted COVID-19 presumptions for first responders and essential workers, while many others are considering enacting similar legislation. These presumptions allow employees who contract COVID-19 to meet their burden that the contraction arose out of and in the course of employment.
Several states, including Minnesota, New Jersey, California and Alaska, have enacted COVID-19 presumption statutes but have not provided guidance to employers on how to overcome the presumption — a key for employers that want to prove a worker may have contracted COVID-19 elsewhere and not on the job.
The presumption in Illinois, signed into law in June 2020, sets forth some methods that allow employers to overcome the presumption by a preponderance of evidence. These methods may be useful for crafting rebuttable arguments in jurisdictions that have not yet outlined such methods in their presumption statutes and where there is still a lack of case law.
The Illinois law created a rebuttable presumption that a first responder’s or front-line worker’s COVID-19 infection arose out of and in the course of the employee’s employment. First responders include policemen, fire personnel, emergency medical technicians and paramedics. Front-line workers include health care providers and essential business employees who are required to encounter members of the general public or work in locations with over 15 employees.
The Illinois law includes three methods to rebut the presumption, calling for the employer to show by a preponderance of the evidence that: the employee was working from home and/or on leave from employment for at least 14 consecutive days immediately preceding the injury, occupational disease or period of incapacity caused by exposure to COVID-19; the employer enforced industry-specific workplace sanitation, social distancing, and health and safety practices as defined by the Centers for Disease Control and Prevention and Illinois Department of Public Health or used administrative controls, engineering controls and/or personal protective equipment to reduce COVID-19’s
transmission for at least 14 consecutive days prior to the employee’s injury, occupational disease or period of incapacity from exposure to COVID-19; or the employee was exposed to COVID-19
by an alternate source.
Rebutting the COVID-19 presumption is easy. The first method is most applicable to employers operating their business primarily remotely. If operating remotely over an extended period is not viable, then employers may still use the second method for their in-person workers.
Employers have the most control using the second method by enforcing adequate health and safety standards in the workplace. Requiring that employees wear masks and practice social distancing suffices. Employers can build sufficient evidence to overcome the presumption by creating policies based on federal and local guidelines and documenting compliance with those policies.
Although the second method does not indicate that employers should encourage their employees to get vaccinated, doing so would serve as supporting evidence of an employer’s good faith effort to reduce COVID-19 transmission in the workplace. Virginia’s COVID-19 presumption statute denies health care workers compensation benefits if they decline vaccinations from their employers. Other states including Illinois, Indiana and Maryland have introduced similar laws that deny workers compensation benefits to workers who refuse to get vaccinated.
For the third method, periodic employee testing may indicate that an employee likely contracted COVID-19 from an alternate source. Additionally, any documentation that an employee reported coming into contact with someone diagnosed with COVID-19 outside of work could serve as evidence of an alternate source, such as witness testimony or employee admission that he or she came into contact with someone outside of work diagnosed with COVID-19.
Even if a claimant meets their burden, the issue that presents the most expensive part of the claim remains: permanency. A claimant still has to prove that they experienced permanent partial disability. That is a large burden given what we know about COVID-19’s symptoms. Most people who are diagnosed experience a runny nose, sore throat, cough, fever and difficulty breathing, in severe cases. Those conditions usually clear up relatively quickly, and most COVID-19 cases result in no significant permanent partial disability or extended time off from work.
COVID-19 exposure is unlikely to result in diminished future earning capacity or disability, which inform permanent partial disability in many states. Per the CDC, most people diagnosed recover within weeks of contraction, and only a small percentage experience severe post-COVID-19 conditions.
The harder cases are those where COVID-19 leads to death, which is more common among older individuals and those with medical conditions such as asthma, diabetes and/or heart disease. If a claimant dies from work-related COVID-19, eligible survivors receive two-thirds of the employee’s weekly wage and compensation for burial expenses.
Novel COVID-19 symptoms such as loss of taste or smell will also be subject to litigation. Those conditions, if lasting, will have significant permanency value.
In addition to COVID-19 presumption statutes, several states have introduced legislation this year that could create presumptions for severe infectious diseases, yet rebuttable presumptions are unlikely to be applied to common annual illnesses such as the flu.
It is very rare for an employee to file for workers compensation benefits for these types of illnesses. Unlike COVID-19, seasonal illnesses such as the flu are unlikely to cause an absence from work for an extended period and therefore would not necessitate workers compensation benefits. Another distinction is that such illnesses almost never result in permanent partial disability.
Rich Lenkov is a capital member and head of workers compensation at Bryce Downey & Lenkov LLC in Chicago. He can be reached at email@example.com. Emilio Campos is an associate in Bryce Downey & Lenkov’s Chicago office. He can be reached at firstname.lastname@example.org.