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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.
In particular, workers comp presumptions for COVID-19 appear be to waning. And the U.S. Centers for Disease Control and Prevention has substantially loosened its guidance on preventing infections (see related story, below).
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 as 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,” he said.
Last year, states passed 13 bills related to workers compensation, workplace safety and COVID-19, following a wave of legislation approved in 2020, according to legislative analyses by the National Council on Compensation Insurance. Most of the new laws were presumptions.
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While this year saw a similar push, with more than a dozen bills introduced nationwide, only four have passed; most extend previously enacted presumptions and other measures, and one deals with comp rates, according to a mid-year NCCI report.
Five states introduced legislation for presumptions for infectious diseases but none have gained traction, according to legislative records.
Laura L. Kersey, executive director of regulatory & legislative analysis for the Boca Raton, Florida-based NCCI, said that as of August only two states — Minnesota and Virginia — had enacted COVID-19 presumptions this year. A few states are still in session and have COVID-19 workers compensation legislation pending, she said.
Presumptions, which the insurance industry 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.
Most of the presumptions were rebuttable, and in some states this led to between 30% and 50% of claims being denied, according to data from several states.
In 2020 and 2021, 18 states established COVID-19 presumptions through legislation, directives, emergency rules and/or executive orders, according to the NCCI. 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.
According to NCCI data, COVID-19 infections among workers were minor for the most part.
Mr. Allen 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.
Still, those working to better understand the implications of long COVID say employers and the workers compensation industry will be dealing with myriad health issues related to the pandemic for years to come. It has been estimated that upwards of 30% of those who get COVID will have longer term health problems that include cardiovascular and neurological symptoms.
“People want to be done with COVID and, unfortunately, they’re not,” said Terri Rhodes, CEO of the San Diego-based Disability Management Employer Coalition, which has created a think tank of medical professionals, employers and workers comp insurance executives to study ways to manage long COVID. The NCCI is also studying long COVID and plans to release a report on it.
Ms. Rhodes said long COVID disability data is “staggering” and that “employers are going to have to accommodate individuals if they can.”
The U.S. Centers for Disease Control and Prevention last month overhauled its guidelines on COVID-19, giving employers the green light to scale back quarantines and other measures many enforced rigidly for fear of legal repercussions.
Specifically, the CDC is now saying those who do not have symptoms but were exposed to someone with COVID-19 no longer need to quarantine; that vaccinated and unvaccinated individuals are to be treated the same when it comes to quarantines; that people who test positive for the virus can end their quarantine after five days; and that COVID-19 screening tests used to catch asymptomatic infections are no longer recommended “in most community settings.”
The Occupational Safety and Health Administration as of late August had yet to make any changes to its COVID-19 guidance since Aug. 13, 2021. OSHA, which typically follows the CDC’s lead, said on its website that updates will be forthcoming.
Workplace safety legal experts say employers should follow the CDC, along with local guidance.
“Because OSHA’s guidance is premised on the CDC’s recommendations, the agency will be forced to acknowledge the significant change, even if it takes OSHA a period of time to update their guidance,” said Andrew C. Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP. Employers following the CDC guidance “will be able to demonstrate that they are providing a workplace free from recognized hazards,” he said.
That’s vital, experts say, as OSHA has in the past two years cited employers under the catch-all general duty clause, which calls for employers to maintain a safe workplace. Following OSHA’s guidance on COVID-19 has met the bar for a safe workplace, experts said.
The latest news may cause some confusion for employers, according to Jenifer Bologna, a White Plains, New York-based attorney for Jackson Lewis P.C.
“Absent some specific state or local rule or standard, employers have very limited other guidance. So employers are best off trying to follow some layered prevention standards along with the CDC,” she said.
Given the realities of COVID-19, “we’re going to be living with it,” she said.