The Virginia General Assembly recently passed several bills providing healthcare workers and first responders with workers’ compensation benefits for contracting COVID-19. The laws went into effect on July 1, 2021.
Delegate Chris Hurst, D-Blacksburg, sponsored House Bill 1985. It establishes a presumption that COVID-19 causing the death or disability of health care providers is an “occupational disease” under the Workers’ Compensation Act. Under the bill, the COVID-19 virus is established by a positive diagnostic test, an incubation period consistent with COVID-19, and the signs and symptoms of COVID-19 that require medical treatment. Once these factors are established, the health care provider is assumed to have gotten COVID-19 as a result of their work environment or activities.
However, this presumption only applies to illness or death that occurs on or after March 12, 2020, and prior to December 31, 2021. Further, this bill provides that the presumption does not apply to any person offered a vaccine by his or her employer, unless the person’s physician documents, in writing, that the vaccine would pose a significant risk of harm to the person’s health.
While some may view the vaccine clause of House Bill 1985 as harsh, it mirrors long-standing law under the Virginia Workers’ Compensation Act. Section 65.2-402.1 of the Code of Virginia addresses presumption as to death or disability from infectious disease. Section 65.2-402.1D provides: “Whenever any standard, medically-recognized vaccine or another form of immunization or prophylaxis exists for the prevention of a communicable disease for which a presumption is established…a person subject to the provisions of this section may be required by such person’s employer to undergo the immunization or prophylaxis…failure or refusal by a person…to undergo such immunization or prophylaxis shall disqualify the person from any presumption established by this section.” Thus, refusal of a vaccine has long barred an employee’s entitlement to a presumption of compensability with respect to infectious diseases.
Delegate Jay Jones, D-Norfolk, sponsored House Bill 2207, which establishes a presumption that COVID-19 which causes the death or disability of firefighters, emergency medical services personnel, law-enforcement officers, correctional officers, and regional jail officers, is once again an occupational disease compensable under the Virginia Workers’ Compensation Act. Unlike Bill 1985, this Bill applies only to disability or death occurring after July 1, 2020, and prior to December 31, 2021. House Bill 2207 originally included a retroactive clause back to March 2020, but that was taken out of the legislation’s final version.
Virginia’s first attempt to pass a bill granting healthcare providers with a COVID-19 presumption was not successful in 2020, but the bills passed both the Senate and the House during the 2021 Special Session. The bills were signed into law by Governor Northam on March 31, 2021.
While the general assembly has afforded health care workers and first responders with COVID-19 coverage, employers and insurance companies may challenge the constitutionality of the retroactive provisions of the presumptions. Both the Virginia Workers’ Compensation Commission and the courts will have to address those arguments.
If you or someone you know has been injured on the job, call Allen and Allen today. We are here to help!