During the recently completed legislative session, the General Assembly, through bipartisan support, amended certain workers’ compensation legislation to include presumed coverage related to COVID-19 for certain professions.
Health care workers who are “directly involved in diagnosing or treating persons known or suspected to have COVID-19” and who either die or become disabled due to COVID-19 will be presumed to have suffered an occupational disease unless that presumption is overcome by contrary evidence.
An occupational disease is defined by law as a “disease 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 the employment.”
The law provides that an employee diagnosed with an occupational disease “shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident” with certain limited exceptions.
To receive the coverage under the new law, the health care worker must have received a positive diagnostic test for COVID-19 and experience signs and symptoms of the coronavirus that require medical treatment.
For those who don’t experience symptoms, the individual can still make a claim for workers’ compensation with entitlement to certain medical benefits, including an “annual medical examination to measure the progress of the condition, if any, and any other medical treatment, prophylactic or otherwise.”
If a covered health care worker receives a positive diagnostic test for COVID-19 but was offered a vaccine for the prevention of the coronavirus, the presumption as outlined in the new law is eliminated unless either the person was actually immunized or a physician provides documentation that the vaccine would pose a significant risk to the employee.
The law says, “Absent such written declaration, failure or refusal by a person subject to the provisions of this section to undergo such immunization shall disqualify the person” from the presumption. The benefit is backdated to March 12, 2020, with certain limitations.
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In separate legislation, Virginia lawmakers passed a similar bipartisan bill for firefighters, law enforcement officers, correctional officers, and regional jail officers who either die or suffer any health condition or impairment resulting from a COVID-19 diagnosis.
The legislation presumes that these workers will have suffered an occupational disease, in the line of duty, unless the presumption is overcome by contrary evidence. Workers will be required to prove they were infected with the disease by a “positive diagnostic test for COVID-19, an incubation period consistent with COVID-19, and signs and symptoms of COVID-19 that require medical treatment.”
The legislation backdates the presumption to Sept. 1, 2020. There is no vaccination provision in this legislation like there is for health care workers.
Before the passage of these laws, employees covered in the new legislation were eligible for workers’ compensation benefits if they could demonstrate they contracted COVID-19 at their job. Under the new legislation, the burden of proof shifts with the presumption for those industry professionals.
Gov. Ralph Northam is expected to sign the legislation, but he can veto it or propose amendments. If the governor signs the legislation, it is likely to take effect July 1.
Customarily employees whose injuries are covered by workers’ compensation are barred from bringing negligence and other similar actions against their employer, making workers’ compensation recovery the sole remedy.