States pass rebuttable presumption legislation

BY MAX KOONCE
Chief Claims Officer, Sedgwick

Throughout this year, we have seen many states enact legislation or issue executive orders regarding presumptions for compensability of COVID-19 claims. Most recently, California, Illinois and New Jersey introduced COVID-19 rebuttable presumption laws shifting the burden of proof in workers’ compensation claims to employers. The specific state regulations are described below. With the shifting of the burden of proof under these new laws, the employer will have to provide evidence to disprove the presumed relationship between COVID-19 and the employee’s work.   

California Senate Bill 1159

On September 17, 2020, California Governor Gavin Newsom signed Senate Bill 1159, which legislates the following:

• Establishes injury to include an illness or death resulting from COVID-19 according to specific dates of injury and criteria
• Establishes a rebuttable presumption of injury with certain limitations in each of three substantive sections:
  • Codifies Governor Newsom’s executive order (N 62-20) as to COVID-related illnesses occurring between March 19, 2020 and July 5, 2020
  • Applies a rebuttable presumption to COVID-related illnesses for firefighters, peace officers and specified healthcare workers for injuries from July 6, 2020 – January 1, 2023
  • Applies a rebuttable presumption to COVID-related illnesses for all other employees (as defined) if and when an “outbreak” (as defined by required positive test case reporting) is determined for injuries from July 6, 2020 – January 1, 2023

• Shortens the period to accept or deny claims to either 30 days or 45 days for COVID-19
• Requires exhaustion of COVID-related paid sick leave prior to compensation

As part of determining an “outbreak” for purposes of application of the presumption, employers were required to report employees testing positive between July 6, 2020 and September 17, 2020 to their administrator by October 29, 2020. In addition, employers must:

• Report positive test cases that occur after September 18 going forward to their administrator within three business days
• Report the highest number of employees who reported to work at the employee’s specific place of employment in the 45 days preceding the last day the employee worked at each specific place of employment
• Employee positive test cases are to be reported regardless of whether the employee is alleging a work-related exposure

Illinois House Bill 2455
On June 5, 2020, Governor J.B. Pritzker signed House Bill 2455 into law creating a rebuttable workers’ compensation presumption for all workers who test positive or are diagnosed with COVID-19. The presumption is retroactive to March 9, 2020 and is effective through December 31, 2020. Below is a brief summary of the bill.

The presumption covers:

• Police and fire personnel if these requirements are met — Confirmed positive laboratory test for COVID-19 or COVID-19 antibodies; or confirmed diagnosis of COVID-19 from a licensed medical professional
• Emergency medical technicians and paramedics
• Individuals employed and considered as first responders
• Health workers and healthcare providers
• Corrections officers
• Essential workers as identified in the governor’s Executive Order 2020-10 dated March 20, 2020 — as long as individuals are employed by essential businesses and operations, are required by their employment to encounter members of the general public, or work in employment locations of more than 15 employees

Additional details:

• For claims after June 15, 2020, the employee must provide a positive laboratory test for COVID-19 or COVID-19 antibodies
• The date of injury or the beginning of the employee’s period of disability is the first of either the date the employee was unable to work due to contraction of COVID-19; or was unable to work due to symptoms that were later diagnosed as COVID-19

New Jersey Senate Bill 2380
On September 14, 2020, New Jersey Governor Phil Murphy signed Senate Bill 2380 into law creating a rebuttable workers’ compensation presumption for any COVID-19 claim for defined “essential employees” where exposure arose out of and in the course of employment and was causally connected to the individual’s employment. The presumption is effective immediately and is retroactive to March 9, 2020. There is no end date to the effective date of the bill.

Covered employees include:

• Public safety worker or first responder, including fire, police or other emergency responders
• Employees involved in providing medical and other healthcare services, emergency transportation, social services and other services, including those provided in healthcare facilities, residential facilities or homes
• Employees who perform functions that involve physical proximity to members of the public and are essential to the public’s health, safety and welfare, including transportation services, and the production, preparation, storage, sale and distribution of essential goods such as food, beverages, medicine, fuel and supplies for conducting essential business and work at home
• Any essential employee as defined by NJ Executive Order 103 of 2020, as extended by subsequent Executive Orders

An employee who is employed by the State who is offered the option of working at home but has refused that option is not regarded as an “essential employee.” The rebuttable presumption applies if an employee contracts COVID-19 during a time period in which the employee is working in a place of employment other than their own residence. 

Additional COVID-19 legislation in California and Oregon

California Assembly Bill 685 
California Assembly Bill 685 dictates notification requirements for employers to employees and local and state health officials when positive COVID-19 cases are reported in the workplace. This bill, which takes effect on January 1, 2021, also gives the state Division of Occupational Safety and Health the authority to close any business or work site if it believes the risk of exposure to COVID-19 constitutes an “imminent hazard to employees.”

Under this bill, employers are required to take the following actions when they are notified of a potential exposure to COVID-19 in their workplace:

• Provide a written notice to all employees and the employers of sub-contracted employees. The notice can come via personal service, text or email. It should also be available both in English and the language of the majority of the employees.
• Provide a written notice to the exclusive representative, if any, of the above referenced employees
• Provide the notice referenced above in a manner consistent with the information gathered on an OSHA 300 log, whether or not the employer is customarily required to maintain such records
• Provide an explanation of possible benefit entitlements
• Explain the employer’s disinfection and safety plan pursuant to directives from the Centers for Disease Control and Prevention
• When an employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, the employer shall notify the public health agency within 48 hours. Current documentation from the State Department of Health defines outbreak in the workplace as, “three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.” Note that the outbreak definition is different from SB 1159.  

Oregon temporary rule for COVID-19 claims
The Oregon temporary rule for COVID-19 promotes the appropriate and consistent processing of workers’ compensation claims for COVID-19 exposure. The rule is effective from October 1, 2020 through March 29, 2021.

In addition to providing key information for employers, the rule also:

• Defines terms used in the rule such as “COVID-19,” ”isolation,” “medical service provider,” “presumptive case” and “quarantine”
• Emphasizes that a “reasonable investigation” must be conducted before denying any claim
• Describes that a “reasonable investigation” for COVID-19 exposure on and after October 1, 2020 must include:
  • Investigating whether or not the nature of the worker’s employment resulted in a likely exposure to COVID-19
  • Determining if the worker did not work for a period of quarantine or isolation at the direction of a medical service provider, the state or local public health authority, or the employer
  • Obtaining a medical or other expert opinion if — before a compensability denial is issued — the insurer is aware of a worker’s positive COVID-19 test result or a presumptive diagnosis, and the source of exposure is unclear
  • Determining whether medical services were required as a result of potential workplace exposure to COVID-19, even if the worker ultimately did not test positive for COVID-19

For more regulatory updates and helpful resources, see Sedgwick’s COVID-19 update center.

Connecticut PFML update

BY BRYON BASS
SVP, Workforce Absence, Sedgwick

Connecticut employees will begin making contributions for the state’s Paid Family and Medical Leave (PFML) program on January 1, 2021. The state passed legislation that created a comprehensive PFML program on June 25, 2019. Employers with one or more employees must participate, but those offering a private plan may apply to the state for a program exemption.

Eligible employees can receive benefits beginning January 1, 2022 for the following qualifying events:

• Upon the birth of a child of the employee
• Upon the placement of a child with the employee for adoption or foster care
• To care for a family member of the employee with a serious health condition; family member includes spouse, sibling, son or daughter, grandparent, grandchild or parent, or an individual related to the employee by blood or affinity whose close association the employee shows to be the equivalent of those family relationships
• Because of a serious health condition of the employee
• To serve as an organ or bone marrow donor
• If an employee is experiencing family violence, they can apply to take up to 12 days of leave
• For any qualifying exigency arising out of the fact that the spouse, son, daughter or parent of the employee is on active duty, or has been notified of an impending call or order to active duty in the armed forces
• To care for a military family member who is injured during active duty

Employee coverage requirements:

• Earning $2,325 in the first four of the past five quarters, and either:
  • Currently employed and working in Connecticut, or
  • Currently unemployed but had been employed and working in Connecticut in the past 12 weeks

• Employees do not need to be a resident of Connecticut
• Employees for whom an employer is paying Connecticut unemployment insurance and Connecticut payroll taxes are considered to be working in Connecticut 

Contribution details:

• Employees will have contributions of 1/2 of 1% deducted from their total wages up to the defined social security wage base (using the same calculations for determining total wages as those used to calculate FICA) and done so through payroll deduction to coincide with each pay cycle
• Employers will be responsible for withholding and submitting payroll deductions for each employee
• These deductions must be submitted to the CT Paid Leave Authority quarterly
• Failure to make appropriate contributions may result in penalties in addition to the required withholdings 

Key benefit information:

• Employees may be paid up to 12 weeks of benefits in connection with the approved reasons for leave; if pregnant or have given birth, and the healthcare provider determines your employee needs more time for recovery; the employee can apply for an extra two weeks of leave
• Weekly compensation shall be equal to 95% of the covered employee’s base weekly earnings up to an amount equal to 40x the minimum wage, 60% of that covered employee’s base weekly earnings above an amount equal to 40x the minimum wage
  • Amount will adjust as the minimum wage adjusts
  • The total weekly compensation will not exceed an amount equal to 60X the minimum wage

• Available on a prorated basis for workers taking leave in increments of less than one full week
• Individuals may receive compensation for non-consecutive hours of leave
• Leave can be taken in the following formats – block leave (several days in a row for the same qualifying reason), reduced schedule (adjustment of working hours less than the routine schedule), and intermittent leave (may use time in 15-minute increments)
• Employees will apply to the CT Paid Leave Authority for paid leave benefits to receive income replacement while they are on leave 

Wage replacement conditions:

• Covered employees may receive compensation from the CT PFML program at the same time as receiving benefits from their employer, although the total amount of the combined compensation cannot exceed 100% of their regular rate of compensation
• Covered employees may not receive PFML compensation at the same time they are receiving unemployment compensation, workers’ compensation or any of other state or federal benefit that provides wage replacement

Considerations for employers
Sedgwick will be prepared to assist employers with administrative services for CT PFML. In the meantime, we recommend that employers:

• Evaluate employee demographics to determine whether any employees meet the eligibility criteria
• Engage with a benefits consultant and/or legal counsel for guidance on policy/plan development, including updating employee handbooks or leave material to include CT PFML
• Explore if a private plan is feasible for your company; generally, a benefits consultant can assist with a feasibility analysis
• Prepare their payroll functions to add another deduction for CT PFML
• Prepare to maintain the employees’ existing health coverage for the duration of the CT PFML

If you have questions about the CT PFML law, please contact your Sedgwick client services representative. For additional information and frequently asked questions, see the Connecticut Paid Leave website.