COVID-19 Presumption Legislation – Virginia
COVID-19 was declared a public health emergency on January 31, 2020, by the Virginia Department of Health and Human Services. The Coronavirus Aid Relief and Economic Security Act, 116 P.L. 136 (March 27, 2020) (“CARES Act”). COVID-19 remains a pandemic in the United States.
COVID-19 is a disease to which the general public is exposed outside of employment. Presently, no case law in Virginia specifically addresses pandemic viruses as occupational diseases and workers’ compensation benefits.
Depending on the circumstances, a disease, such as COVID-19, may be compensable as an occupational disease.
To prove an occupational disease, an employee must establish that he suffers an illness arising out of and in the course of employment “but not an ordinary disease of life to which the general public is exposed outside of employment.” Va. Code § 65.2-400(A). To meet this burden, the employee must prove (1) a direct causal connection between the work conditions and the occupational disease; (2) that the disease can be seen to have followed as a natural incident of the work as a result of the exposure due to the nature of the employment; (3) that the employment proximately caused the disease; (4) that it was not a disease to which he would have had substantial exposure outside of employment; (5) it was incidental to the character of the business, and not independent of the employee/employer relationship; and (6) the disease originated in the risk of employment and flowed as a direct consequence of it. Virginia Code § 65.2-400(B).
A disease that is not compensable under Virginia Code § 65.2-400, because of the possibility of substantial exposure outside of employment, may still be compensable under Virginia Code § 65.2-401. For an ordinary disease of life to be compensable as an occupational disease, the employee must establish by clear and convincing evidence that the disease arose out of the employment and did not arise from causes outside the employment and that the disease either: (1) follows as an incident of occupational disease; (2) is an infectious or contagious disease contracted by workers in the health care industries; or (3) is characteristic of the employment and was caused by conditions peculiar to such employment. Virginia Code § 65.2-401. The elements required to prove an ordinary compensable disease of life must be established by clear and convincing evidence and not a mere probability. The employee bears the burden to prove all elements of Virginia Code § 65.2-401, including that the disease did not result from causes outside his employment.
A bill has been sent to Governor Northam. If signed into law, it would provide first responders, including firefighters, law enforcement, EMS providers, and correctional officers exposed to COVID-19 while on the job. The COVID-19 related illness would be compensable “unless such presumption is overcome by a preponderance of competent evidence to the contrary.”
According to the bill, the employee must have a diagnosis of COVID-19 from a licensed physician, after either a presumptive positive test or a laboratory-confirmed test for COVID-19, and presented with signs and symptoms of COVID-19 that required medical treatment.
The bill states that the presumption would apply to death or disability occurring on or after March 12, 2020, and before December 31, 2021.
I believe that COVID-19 claims that healthcare employees and emergency response personnel initiate are likely to be analyzed under Va. Code §65.2-401 covers employment in a hospital, healthcare, emergency rescue, and similar employment settings. For all other individuals, COVID-19 claims could fall within the “ordinary disease of life” classification.
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