COVID-19 Presumption Legislation – District of Columbia
The DC Council has enrolled changes to various statutes relative to COVID-19 and workers’ compensation, and unemployment benefits will be discussed in further detail below. These proposed changes were signed by Mayor Muriel Bowser on February 26, 2021. They will expire in 90 days, but more temporary legislation is likely pending. Information about the state of the proposed changes can be found here: https://lims.dccouncil.us/Legislation/B24-0058.
The major proposed changes so far relative to workers’ compensation benefits note an “injury” under public and private sector workers’ compensation law would now include the contracting of COVID-19 in the course of and within the scope of employment. However, at this time, there is no specifically-tailored COVID-19 “presumption” legislation for workers’ compensation claims, such as those proposed or adopted in other jurisdictions. D.C. proposals/laws relative to COVID-19 and workers’ compensation benefits appears to primarily ensure workers can file for workers’ compensation benefits if they suspect they contracted COVID-19 (defined in the statute as “the disease caused by the novel Coronavirus SARS-CoV-2 or any of its recognized mutant variations”) in the course of and within the scope of employment. In layman’s terms: an employee could file a claim for workers’ compensation benefits after contracting COVID-19 and missing time from work, or if that person has to take unpaid time off from work because of exposure to COVID-19. For those familiar with D.C. workers’ compensation law, this should come as no surprise; the burdens of proof and persuasion are heavily in the claimants’ favor when filing a claim. The D.C. Department of Employment Services (DOES), which encompasses the workers’ compensation system as well as unemployment and other employment-related offices, has produced a chart of “COVID-19 Scenarios and Benefits Available” as well, found here: https://does.dc.gov/sites/default/files/dc/sites/does/publication/attachments/DOES-covid-19-scenarios-and-benefits_v13_0.pdf. The chart states that if the employee is exposed to the virus during regular work duties and lost wages as a result of either becoming ill or having to quarantine due to exposure, he or she may be entitled to workers’ compensation benefits. Of course, the chart is not the “law,” but it can give some insight into the current state of benefits available in different scenarios.
There are a few other portions of related laws that may eventually make their way into the workers’ compensation scheme in D.C., either through changes to the statutes or through caselaw. For example, the Displaced Workers Right to Reinstatement and Retention Amendment Act of 2020 (passed January 13, 2021) provides that employers and contractors in retail, hospitality, or other covered industries must offer certain employees “displaced” by COVID-19 reinstatement to their previous positions or to a substantially similar position as positions become available. This kind of scenario may spill over into the workers’ compensation field, but that is only this attorney’s conjecture at present.
Additionally, the proposed changes expand an employer’s obligation to report the injury, illness, or death to include if an employer knows of an employee who has contracted COVID-19 in the course of and within the scope of employment or whose contact with others in the course of and within the scope of employment makes the contracting of COVID-19 probable. This reporting obligation, if it becomes law, will most likely result in many employers filing more Employer’s First Reports (DCWC Form No. 8). Form 8 filings do not constitute filing a claim, nor is it evidence of the truth of the claimant’s allegations, but it does start the timetable for the statute of limitation on indemnity benefits of filing if an employer learns of an employee’s potential exposure.
The attorneys at Franklin and Prokopik have been preparing for additional discovery in this regard and strategizing ways to limit a claimant’s allegation of contracting COVID-19 in the workplace (as opposed to elsewhere) because of the lack of presumption legislation to date. Due to the current uncertainty in D.C. workers’ compensation law relative to COVID-19, it is strongly recommended one discusses the matter with counsel when dealing with a potential COVID-19 claim.
UPDATE: Enacted – signed by Mayor. Effective for 90 days; more temporary legislation is supposedly pending.
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