COVID-19 Presumption Legislation – Maryland
As a result of the COVID-19 pandemic, the Maryland Legislature has introduced eight bills that seek to include COVID-19 and the related Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) as an occupational disease, as well as expand the classes of employees who are entitled to the §9-503 presumption. The proposed bills are currently pending second hearings in their respective original chambers. Each of the proposed bills creates a presumption of compensability as a result of COVID-19 and SARS-CoV-2 for at least one class of employees, and all except for House Bill 1247, Senate Bill 725, and Senate Bill 860 include a provision that permits any covered employee, not within a class contemplated by the bill to file an occupational disease claim with the Workers’ Compensation Commission or a personal injury claim under state law. The bills will be discussed in more detail below.
House Bill 1199 and Senate Bill 813 are the most expansive bills on the table. These bills create a presumption of compensability for firefighters and first responders, childcare workers, education workers, healthcare workers, and essential workers. The presumption applies so long as the following three (3) elements are met: (a) the employee is suffering from the effects of SARS-CoV-2; (b) the employee has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies; and (c) the employee’s duties required him or her to perform labor or services at a location other than the employee’s home or residence within 14 days of the onset of symptoms. The bills require that the employee seeking compensation must provide the employer or insurer a copy of the positive COVID-19 test or written documentation confirming the diagnosis. The presumption created by these bills can be rebutted only if the employer or insurer demonstrates that the employment was not a contributing cause of the disease. These bills are to be applied prospectively, meaning that the presumption would only be applied in cases that are filed after the bills’ effective dates.
Senate Bill 812 provides for the presumption of compensability for firefighters, first responders, and health care workers only and does not include essential workers or childcare workers. This bill does not require that employees perform work outside of their home within 14 days of the onset of symptoms of COVID-19 for the presumption to apply. The presumption created by this bill can only be rebutted if the employer or insurer demonstrates that the employment was not the direct cause of the disease. Finally, this bill requires employees to notify employers within one year and file a claim with the Workers’ Compensation Commission within two years of either the date on which the employee tests positive for SARS-CoV-2 or the related antibodies or the date on which the employee is diagnosed with COVID-19, whichever is later. If passed, this bill would be applied retroactively and affect any claim filed on or after January 1, 2020.
House Bill 765 provides for the presumption of compensability in firefighters and first responders. For the presumption to apply, the employee must meet three requirements. The employee must prove that: (a) he or she is suffering from the effects of SARS-CoV-2; (b) he or she has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) he or she maintained a position that required him or her to be in direct contact with members of the public. The bill also creates a presumption of compensability for childcare and healthcare workers, so long as the employee (a) is suffering from the effects of COVID-19, (b) has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies, and (c) maintained a position that required him or her to be in direct contact with patients or children of first responders or health care workers, or occupy, clean, or repair areas occupied by patients or the children of first responders or health care workers. The presumption created by this bill may be rebutted only if the employer or insurer demonstrates that the employment was not a direct cause of the disease. This bill does not specify whether it is to be applied retroactively or prospectively.
House Bill 1247 and Senate Bill 725 are the only bills currently circulating through the Maryland Legislature that do not expand the presumption of compensability beyond firefighters and first responders. These bills create a presumption of compensability in firefighters and first responders, so long as the employee is (a) suffering from the effects of SARS-CoV-2; (b) maintained duties require direct contact with members of the public, and (c) has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies. These Bills would be applied prospectively.
Senate Bill 756 creates a presumption of compensability in firefighters and first responders, so long as the employee is suffering from the effects of SARS-CoV-2 and has been diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies. This bill also expands the presumption of compensability to health care workers, so long as the employee is suffering from the effects of SARS-CoV-2; has been diagnosed with COVID-19 or tested positive for SARS-CoV-2 or related antibodies; and was required to be in direct contact with patients or occupy, clean, or repair areas occupied by patients. This bill would be applied retroactively and would affect any claim filed on or after March 5, 2020.
Unlike the other pending presumption legislation, Senate Bill 860 creates a presumption of compensability in public school employees. Under this bill, a public school employee would be entitled to the presumption so long as the following requirements are met: (a) on or after March 1, 2020, the employee tested positive for or was diagnosed with COVID-19 within 14 days after a day that the employee performed labor or services at a public school or other assigned workplace outside the employee’s home at the employer’s discretion, and (b) the test was performed, or the diagnosis was made by a healthcare practitioner who is licensed, certified, or otherwise authorized under the Health Occupations Article to perform the test or make the diagnosis. The presumption created by this bill can only be rebutted if the employer or insurer can show by substantial evidence to the contrary that the employee tested positive for or was diagnosed with COVID-19 for reasons not arising out of and in the course of employment. This bill is to be applied retroactively and would apply to claims filed on or after March 1, 2020.
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