COVID-19 Workers’ Compensation Presumption Ended
In April of 2020, Governor Beshear issued Executive Order 2020-277 relating to workers’ compensation.
The order dictated certain groups of people, who had frequent contact with the public during the COVID-19 pandemic, were presumed to have “occupational exposure” for purposes of receiving temporary total disability payments pursuant to KRS 342.730(1)(a) during the period they were removed from the workplace by a physician.
Paragraph 3 of Executive Order 2020-277 identified the following workers who were privy to the presumption:
- Employees of a healthcare facility
- First responders (law enforcement, emergency medical services, fire departments)
- Correction officers
- Military
- Activated national guard
- Domestic violence shelter workers
- Child advocacy workers
- Rape crisis center staff
- Department for Community Based Services workers
- Grocery workers
- Postal service workers
- And child care workers permitted by the Cabinet for Health and Family Services to provide child care in a limited duration center during the state of emergency
Practically, this executive order shifted the burden of proof from the workers to the employer, or its payment obligor, to prove the exposure was not occupationally related – a difficult task.
House Joint Resolution 1 (HJR1) from the 2021 Special Session of the Kentucky General Assembly substantially amended Executive Order 2020-277. HJR 1 extends the executive order to January 15, 2022. However, HJR1, Section 2 removes the presumption of occupational exposure found in paragraph 3. The relevant language from HJR 1 is as follows:
Section 2. The General Assembly hereby approves, extends, and in some cases modifies as stated the following executive orders issued in response to the SARS-COV-2 virus and declares that the same shall be in effect until and expire on January 15, 2022:
(7) 2020 Executive Order 2020-277, related to temporary disability from occupational exposure to COVID-19, except the provisions in paragraph 3;1
What does this mean? Employees who have frequent contact with the public and contract COVID-19 are no longer presumed eligible for workers’ compensation benefits for occupational exposure to COVID-19. Instead, all employees that contract COVID-19 in the course of employment have the burden to show that COVID-19 was contracted through occupational exposure to receive workers’ compensation benefits.
The effect of HJR 1 greatly reduces potential liability on behalf of the city, or its obligor, when determining benefit eligibility. For those with coverage through Kentucky League of Cities Insurance Services who believe there has been an occupationally related exposure, KLCIS encourages you to call Company Nurse. There will be an investigation into each possible exposure, and a determination will be made on the individual merit of each claim.
KLC will continue to monitor for updates. Please contact your workers’ compensation carrier or the Municipal Law Department at 800.876.4552 with any questions.
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1 Emphasis added.
