(Temporary?) Presumptions in Worker’s Compensation

Worker’s compensation is a legal compromise—if an injury or disease arises out of and in the course of employment, the employer accepts liability and the employee receives specific, limited benefits. These benefits are defined by state statute and represent an employee’s exclusive remedy against an employer for an asserted workplace injury or exposure.

The decision whether the claim is compensable (namely, whether there is credible evidence that an exposure or injury arose out of and in the course of employment) is a factual determination. In April, as part of the COVID-19 response, many states began to make it easier for employees to receive statutory compensation and benefits by creating a legal presumption that the employee contracted COVID-19 through employment. The impact of creating a presumption of exposure is to shift (or remove) the burden of proof from the employee and increase an employer’s liability and costs.

There are three methods states are using to change the current statutory requirements.

Proposed Legislation

At least 17 states have proposed legislation that would shift or remove the evidentiary burden from employees by creating a presumption that an employee contracted COVID-19 in the course of employment. Minnesota and Wisconsin have already enacted temporary legislative measures that shift the burden from certain employees.

Emergency Rules

Worker’s Compensation Boards in other states have passed emergency rules, with varying success. For instance, Illinois employer groups asked the court to address the appropriateness of changing statutory requirements (creating a rebuttable evidentiary presumption) by an emergency declaration. The court stopped the emergency enactment from taking effect, and the Illinois Worker’s Compensation Commission subsequently repealed the emergency rule.

The Michigan Agency passed an emergency rule that shifts the burden to an employer to justify a denial. Missouri’s emergency rule applies to public employees and expires with the state of emergency executive order. So far, these actions are not contested.

Executive Orders

Several governors have opted to address employee concerns by creating evidentiary presumptions through executive orders, usually in conjunction with other executive orders related to COVID-19. For instance, California’s governor signed an executive order creating a rebuttable presumption for essential employees who are diagnosed with COVID-19. The California order applies to essential employees across all employment sectors. Arizona’s governor temporarily suspended portions of the worker’s compensation code, easing the burden of proof for first responders and front-line health care workers.

Most of these changes are limited in scope (such as applying to first responders or health care workers) and duration (during the length of the state emergency). Other proposed changes, however, continue through 2021 (Minnesota and Utah) or after employment ends (California).

Other states (like Indiana and Ohio) continue to rely on the statutory requirements without pursuing emergency measures. Indiana, for example, has asked employers to voluntarily adopt an evidentiary presumption without a legislative change. Some worker’s compensation insurance companies have voluntarily adopted a presumption of occupational exposure to remove the burden of proof from some employees.

What Should Employers and Insurers Do?

As employees go back to work, more questions may arise about possible occupational exposures to COVID-19. Employers and insurers should continue to fully investigate COVID-19 claims as they do all other asserted work-place injuries, obtaining the employee’s statement about the asserted exposure, and asking questions pertinent to COVID-19 spread. It is important that employers discuss with their insurers or administrators how to address these investigations and any situations where the employer may presume occupational exposure.

If you have questions about the status of worker’s compensation presumptions in the states you conduct business, please contact Ann H. Stewart, Jennifer M. McDaniel, or any other member of our Labor, Employment and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.