[Please do not circulate outside your agency.]
By Honorable David B. Torrey
Workers’ Compensation Judge
Pennsylvania Department of Labor & Industry
Four workers’ compensation topics dominated in state legislatures over the last year or so. These were the compensability of, and other issues surrounding, illness resulting from COVID-19 exposure; how and when mental stress causing mental disability claims may be compensated; medical marijuana; and exclusion of independent contractors and workers laboring in the gig economy.
I. Enactments Surrounding the Pandemic
An analysis by the National Council on Compensation Insurance (NCCI) indicates that, during the last year or so, thirteen jurisdictions enacted laws addressing COVID. A few of these are especially remarkable.
The Arkansas legislature amended the state’s law to provide that the virus, even though reflective of a contagious disease (coverage with respect to which had always been narrow), can constitute a covered “occupational disease.” Ark. Code § 11-9-601(e)(3)(A), (B). No special class of workers is delineated for special treatment, and no presumption of causation applies. To the contrary, the claimant must prove causation of the occupational disease by the preponderance of the evidence.
The same bill amended the law to provide that an employer which exposes its worker to the virus has not committed an intentional act sufficient to defeat such employer’s tort immunity. This is so even if the employer has certain knowledge that the worker will be exposed, yet nonetheless “requires” the worker to perform his work under such conditions.
The NCCI study identifies eight jurisdictions which created or expanded COVID-19 causation presumptions. Most provide the presumption for workers who deal with the public. For example, the Virginia legislature passed two bills, the first establishing a presumption for healthcare providers and the other for first responders (writer’s term) and correctional officers/ jail guards. These bills were codified at Virginia Statutes § 65.2-402.1(B.1) (healthcare providers); and § 65.2-402.1(B.2) (first responders and corrections officer/jailers).
The South Dakota legislature enacted a law (outside the workers’ compensation act) which granted broad immunity to various potential defendants from negligence actions based on an individual’s contraction of COVID-19. See So. Dakota Stat. §§ 21-68-1 through 21-68-6. These potential defendants seem comprehensive, presumably covering any individual or enterprise (including an employer), with special provisos granting immunity to premises owners, health care providers, and manufacturers and sellers of personal protective equipment. The law, in its closing “construction” section, admonishes that it is not to be construed to “[d]eem COVID-19 an occupational disease.” Indeed, the same precise proviso declares, “COVID-19 is not an occupational disease under state law[.]”
The South Dakota enactment is similar to COVID-19 laws of other jurisdictions. Professor Michael Duff has identified such laws as having been passed in at least seven states. He remarks, “[I]f workers’ compensation does not cover Covid-19, employees living in states that have enacted Covid-19 civil immunity provisions … face a rather dramatic dual-denial problem…. Wrongful exposure to Covid-19 will not be ‘actionable’ under either workers’ compensation or negligence….” Michael C. Duff, Can Workers’ Compensation “Work” in a Mega-Risk World?: The COVID-19 Experiment, 35 Am. Bar Ass’n J. of Lab. & Emp. Law 17 (2020), https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/v35/number-1/can-workers-comp-work.pdf.
West Virginia, in this same spirit, enacted a 2021 law providing that its intentional tort exception proviso does not apply in the COVID-19 context. Still, under the West Virginia statute, illness caused by COVID-19 does appear to be covered as a disease. See W. Va. Code § 55-19-6.
II. Enactments Regarding Mental Stress Causing Mental Disability
A trend exists of states relaxing prohibitions on mental stress causing mental disability claims, at least for first responders and others whose occupations make extraordinary stress – and resultant PTSD – a hazard. During the last year or so, at least five states expanded the occupations covered by such laws. The Maine legislature, for example, now allows emergency dispatchers and corrections officers diagnosed with PTSD to receive benefits. Me. Stat. title 39-A, § 201(3)(A)(b).
An unusual new law is that of West Virginia, which for the last few decades has explicitly excluded all mental-mental claims. See, e.g., Logan Burke, Finding a Way out of No Man’s Land: Compensating Mental-Mental Claims and Bringing West Virginia’s Workers’ Compensation System into the 21st Century, 118 W.Va. L. Rev. 889 (2015). With HB 3107, the legislature now recognizes PTSD in first responders, but only if the employer has “elected to provide” such coverage as an occupational disease and arranged for such coverage through its insurance carrier or via its self-insurance program. See W. Va. Code § 23-4-1f(d)(1)(A), B(4).
A development in its own category is a law in Connecticut. That state, like West Virginia, was a jurisdiction prohibiting mental-mental claims. Now, however, the statute allowing an exception for first responders has been expanded so that healthcare providers who develop PTSD from treating individuals with COVID-19 are covered. See Conn. Stat. § 31-275(16), 31-294k.
III. Laws Addressing Medical Marijuana
Most developments with regard to workers’ compensation and medical marijuana are found in decisional law, as courts hold whether or not employers are responsible for payment of the substance.
The Alabama legislature, however, attempted to forestall litigation of the issue and enacted a law providing that employers are not responsible for such reimbursement. Ala. Stat. § 20-2A-6. That same law clarified that, although medical marijuana was being legalized, employers may still defend a workers’ compensation claim on allegations of employee intoxication. Indeed, the law features a strongly-worded presumption: “An employee who is injured or killed [and who otherwise might be entitled to workers’ compensation] … is … ineligible to receive compensation … if the injury or death occurred due to the employee’s impairment by medical cannabis, which shall be conclusively presumed in the event of a positive drug test ….”
The Montana legislature in 2021 addressed a similar issue differently. With the enactment of HB 655, the legislature joined the growing number of states which disqualify a worker from benefits for a post-injury refusal to take a drug test. The law, however, provides that it “does not apply to a drug test for marijuana or marijuana products that was administered to an individual who is a registered [medical marijuana] cardholder ….” Mont. Stat. § 39-51-2303(3).
The well-known trend of states legalizing recreational marijuana has no intrinsic effect on workers’ compensation laws. However, presumed increase of marijuana use in the workforce is obviously of moment when considering issues of workplace safety. See John Howard, L. Casey Chosewood, Lore Jackson-Lee, & Jamie Osborne, Cannabis and Work: Implications, Impairment, and the Need for Further Research (June 15, 2020), https://blogs.cdc.gov/niosh-science-blog/2020/06/15/cannabis-and-work/.
Also, forfeiture provisos that create presumptions of intoxication and accident causation (almost universally rebuttable) typically provide that any evidence of marijuana use gives rise to the presumption. Fla. Stat. § 440.09(3); § 440.09(7)(a). See Brinson v. Hosp. Housekeeping Servs, LLC, 263 So.3d 106 (Fl. Ct. App. 2018) (claimant, found to have marijuana in her system after accident, failed to rebut presumption; case features an extensive dissent).
A few states have sought to ameliorate the harsh forfeitures wrought by such a rule by establishing, as with alcohol in the Motor Vehicle Code, a threshold level of marijuana that must be present before intoxication from the same is presumed. Nevada, in 2021, with HB 400, passed such a law. See Nevada Revised Statutes § 616C.230.
IV. Gig Economy Workers
The desire of gig economy enterprises to have states establish, as a matter of law, that their workers are independent contractors was evident in a 2021 Utah enactment. The legislature of that state passed a law stating that a “remote-service contractor” is not an employee of a marketplace company if certain conditions are met. See Utah Stat. § 34-53a-101-201. The law is called the “Remote Service Marketplace Platforms Act.” An interesting discussion of such laws can be found at Michael C. Duff, All the World’s a Platform?: “Marketplace Platform” Employment Laws, The Brief 42 (Am. Bar Ass’n Winter 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3520723.
Meanwhile, proceeding in a different spirit, the New Jersey legislature gave more muscle to the Labor Commissioner to promulgate and seek the enforcement of “stop work” orders against enterprises which have categorized their workers as independent contractors and hence have not secured workers’ compensation insurance. See N.J. Stat. § 34:1A-1.12(h)-(j).