WORKERS’ COMP COVID-19 BILLS WON’T PASS DURING EXTENDED LEGISLATIVE SESSION

While there continues to be manifold challenges with the COVID-19 pandemic worldwide, in Massachusetts, worker’s compensation insurer’s will not face a liberalized standard for making a Covid-19 diagnosis a compensable industrial injury.  

Under the law as written[1], Workers’ compensation coverage for COVID-19 in Massachusetts is limited to situations in which, “the hazard of contracting such [occupational] diseases by an employee is inherent in the employment.”[2]  Therefore, healthcare and public safety workers will likely be covered. However, as for the impact to the rest of the working population, legislation on expanding the “inherent in employment” standard, has come to a standstill.[3] 

Two bills have been filed and forwarded to the MA Joint Committee on Labor and Workforce Development, in September, 2020. The purpose of the proposals is to streamline workers’ compensation claims and to create a rebuttable presumption that any essential worker infected with COVID-19 contracted the virus incident to employment. This rebuttable presumption threshold has been enacted by legislation, regulation, or executive order in many states and shifts the burden of proof from the employee to show that the virus was contracted in the line of employment, establishing causation per se, and shifts the burden to Employer to refute causation/compensability by credible expert medical evidence refuting causation.  

What does this legislative status quo mean for businesses?  There will be a predictable and steady legal landscape in MA workers’ compensation that no employees will be eligible for workers’ compensation simply because they contracted COVID-19 contemporaneous with an alleged incident to employment.   

Additionally, MA recently approved workers’ compensation rates with an average premium reduction of 6.8%, reducing workers’ compensation costs to businesses across the board! A welcome relief in challenging economic times.   

As winter comes, with Covid-19 cases on the rise and with predictions of a particularly tough winter, this information comes as good news to employers and insurers who will continue to only have to pay for claims where the disease is either inherent in the employment (a true occupational disease), or the employee can show with expert medial evidence that she contracted Covid while performing duties within the course and scope of the job, not caused by the terms, circumstances, and conditions of employment, and not secondary to comorbidities or family or community spread.  

Call anytime for Zoom Conferences on MA workers’ compensation issues and DIA practice and procedure.  

And Happy Thanksgiving too.  

Edward M. Moriarty, Jr., Esquire

[1] MGL ch. 152 ct. seq.

[2] MGL ch. 152 § 1 (7A)

[3] House Bill H. 4749 sponsored by Rep Chris Handricks of New Bedford MA.