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COVID-related comp legislation struggles to gain traction


This year’s dearth of enacted COVID-19 legislation that would affect workers compensation is an indication that lawmakers have lost their appetite for measures to address the pandemic’s effect on worker infections, insurance experts say.

Last year, states passed 13 bills related to workers compensation, workplace safety and COVID-19, piggybacking on a wave of legislation approved in 2020 in the early stages of the pandemic, according to legislative analyses by the National Council on Compensation Insurance. While 2022 saw a similar push, with more than a dozen bills introduced nationwide, only four have passed; most extend previous laws and one deals with comp rates, according to a mid-year NCCI report.

Laura L. Kersey, executive director of regulatory & legislative analysis for Boca Raton, Florida-based NCCI, said most of the bills introduced this year have dealt with presumptions that a disease was caught at work, not just for COVID-19 but for “infectious diseases.”

Ms. Kersey said only two states — Minnesota and Virginia — have enacted COVID-19 presumptions in 2022. A few states — including California, Massachusetts, and Pennsylvania — are still in session and have COVID-19 workers compensation legislation pending, she said.

Steve Bennett, Washington-based assistant vice president for workers compensation programs and counsel for the American Property Casualty Insurance Association, said “there's no reason” for COVID-19 presumptions in most cases, especially since workers are no longer facing lockdowns.

“In 2020, there were a lot of quarantines; people were not going anywhere. But certainly in 2022, people are in their social mix, they are going on vacations or going to wedding receptions or parties, and just living their life now,” he said.

“It’s really hard to say if you get a contagious disease, that it was not at the party, sporting event, concert or dinner party you attended, that we are going to presume it was work-related.” 

Presumption, which the APCIA typically opposes, had a place early in the pandemic, Mr. Bennett said.

“Most of the presumptions that passed in 2020 and 2021 were very reasonably limited to health care providers and first responders,” he said.

Brian Allen, Salt Lake City-based vice president of government affairs, pharmacy solutions, for Mitchell International Inc., a subsidiary of Enlyte Group, said lawmakers also learned that some of the legislative pushes were unnecessary.

“Over the last two years, we've had some time to see how the presumption laws work, and in states without presumption laws how COVID claims have been handled. What we found was evidence that the workers comp system has actually worked fairly well even without a presumption for COVID,” Mr. Allen said.

Also, infections among workers, for the most part, were minor, according to NCCI data, and most presumptions were rebuttable. In some states, this led to between 30% and 50% of claims being denied, according to data from several states.

According to the NCCI, in 2020 and 2021, 18 states established COVID-19 presumptions via legislation, directives, emergency rules, and/or executive orders. Two additional states—Tennessee and Washington—established a more general “infectious disease presumption.”

“The experience of COVID has taught us that, first of all, the workplace fears were probably a little bit exaggerated, and, secondarily, a lot of things were in place to help mitigate the impact,” Mr. Allen said, pointing to a variety of workplace safety measures mandated by both federal and local agencies.

He said states are managing COVID-19 infection surges and new variants with less-restrictive regulations, as opposed to laws, as regulations are easier to manage in terms of expiration dates and other parameters.