The Problem With Presumptions
States’ Legislation To Declare “Irrebuttable Presumption” That Workers Contracted COVID-19 On The Job Is Both Illogical and Unhelpful
In the wake of the novel coronavirus, questions have arisen about whether an employee who contracts coronavirus is covered under Pennsylvania’s Workers’ Compensation Act. Because coronavirus is so new, there are no rulings on the issue from any workers’ compensation judges, the workers’ compensation appeal board or the appellate courts. The act does provide that certain specific occupational diseases, such as black lung and asbestosis, are covered, but coronavirus is obviously not on the list.
Section 301(e) of the act also provides a “rebuttable presumption” that a claimant contracted a disease where he or she was employed in an occupation or industry in which the occupational disease has been determined to be a hazard even though the particular disease is not specifically mentioned in the act. In order for the “rebuttable presumption” to apply, the claimant must prove that:
(1) he or she was exposed to the disease by reason of his or her employment;
(2) the disease is causally related to the industry or occupation; and
(3) the incidence of the disease is substantially greater in that industry or occupation than in the population at large.
The claimant must prove all three of these elements in order to be entitled to the “rebuttable presumption.” Because the COVID-19 virus has reached pandemic proportions and is found everywhere in the world, it will be very difficult for claimants to establish that the incidents of COVID-19 are substantially higher in a particular industry or occupation than in the population at large. If claimants are not entitled to the “rebuttable presumption,” then they are faced with the burden of proof associated with non-occupational disease claims under Section 301(c)(1), and this requires that they prove, to within a reasonable degree of medical certainty, a causal relationship of the disease to a workplace exposure. Unless a claimant were able to prove that he or she came in direct contact with a coworker who tested positive for the virus and had no other exposure, then these claims will likely fail due to the prevalence of coronavirus in the general community.
Proposed Legislation on “Irrebuttable Presumption”
Legislatures in a number of states have recognized the difficulty claimants will have in proving their coronavirus infection came from the workplace, so they have proposed “irrebuttable presumption” laws declaring that certain categories of workers have contracted coronavirus while working. In Pennsylvania, the proposed list of workers includes:
“Individuals Employed by a Life-Sustaining Business or Occupation” – Front-line employees and other individuals employed by or under contract with a life-sustaining business or entity who work during the declaration of a disaster emergency or a public health emergency. The term includes, but is not limited to:
(1) First responders, including law enforcement officers, firefighters, emergency medical technicians and other individuals who are considered to be first responders;
(2) Corrections officers;
(3) Emergency services dispatchers;
(4) Ambulance drivers;
(5) Retail workers, including restaurant, food services and grocery store workers, cashiers and other support staff;
(6) Food and agriculture workers;
(7) Medical, healthcare and public health workers, including doctors, nursing professionals, physician’s assistants and paramedics, and other support staff;
(8) Pharmacists and any cashiers and other pharmacy support staff;
(9) Home healthcare workers;
(10) Public utility workers, including workers engaged in providing telecommunications, energy, water and waste water services and public works;
(11) Any employee of state or local government;
(12) Trash collectors;
(13) Warehouse workers; and
(14) Any other individual employed by a life-sustaining business or occupation who is required to work during the …”emergency”…
Significantly, the list does not include other workers who are probably even more likely to be infected than those included in the list. For example, delivery drivers, custodians, gas station employees and childcare providers are just a few occupations not included.
Due to a lack of reliable testing, we may never know whether workers in one particular job or industry display a higher incidence of infection than those in others. In light of the minimal data available on the issue of rate of infection due to occupation, the “irrebuttable presumption” legislation appears illogical and not based on facts. Further, not only is the “irrebuttable presumption” legislation misguided, it is unhelpful to the workers it is meant to protect.
Benefits Provided by Federal Law and Other Pitfalls of “Irrebuttable Presumption” Legislation
In Pennsylvania, workers’ compensation pays two-thirds of a claimant’s average weekly wage. Federal law, however, is more generous. The Coronavirus Aid, Relief and Economic Security (CARES) Act, which was signed into law on March 27, 2020, provides enhanced sick leave, FMLA benefits and unemployment benefits. Under the sick leave provisions of the CARES Act, a worker can receive up to 10 days off from work and receive two-thirds of his or her regular pay without being subject to state maximums on workers’ compensation benefits. Workers taking advantage of the increased FMLA benefits can now receive up to 16 weeks of benefits at a maximum of $200 per day. The CARES Act further provides that a worker can qualify for unemployment benefits even if he or she is sick and unable to work. The CARES Act also provides that unemployed workers will receive $600 per week from the federal government in addition to their state unemployment compensation benefits. As some commentators have pointed out, some unemployed workers will make more by collecting state and federal unemployment compensation than they did while employed.
Finally, “irrebuttable presumption” legislation is problematic insofar as it is applied retroactively. Article I Section 10 of the United States Constitution and Article 17 of the Pennsylvania Constitution both prohibit ex post facto laws given that coronavirus was recognized by the World Health Organization on February 11, 2020. Subsequent “irrebuttable presumption” legislation would appear to be an instance of prohibited ex post facto law making.
Despite the problems outlined above, the Pennsylvania Secretary of Labor & Industry, Jerry Oleksiak, said the following: “As Pennsylvania and the nation implement mitigation efforts to slow the spread of COVID-19, it is important to relieve some of the financial pressures our workers are facing so they can focus on remaining healthy and safe. The best option is for employers to offer their employees paid time off. If leave is not available and your job has been impacted by this new virus, you may be eligible for benefits either through unemployment or workers’ compensation. If you work in a job or industry that likely will be affected, prepare now by knowing what you need and how to file so your application can be processed quickly.”
Due to the unique nature of the coronavirus epidemic, nobody can predict with certainty what will happen. However, we can look to the Workers’ Compensation Act and cases interpreting the act to construct a workable framework for handling these cases. Although the legislation proposed in response to the COVID-19 pandemic is well-intentioned, it creates problems for employers by forcing them into potential no-win scenarios. If you are overzealous in fighting claims, you risk alienating employees. If you let every claim be processed without investigation, then it opens the floodgates for abuse by employees and perhaps even fraud, not to mention an increased number of claims, which almost certainly will result in higher premiums. Consequently, employers and their legal teams will need to scrutinize claims thoroughly and efficiently in the initial weeks and months following a full return to work to foster the appropriate atmosphere of empathy and vigilance in the workplace. Should the proposed “irrebuttable presumption” legislation pass both houses and be signed into law by Governor Wolf, it will inevitably face court challenges on constitutional grounds. We will continue to monitor the proposed legislation closely.