Should There be a Presumptive Law to Protect Essential Workers Who Develop COVID-19?
Maryland’s Essential employees have spent the last several months going to work wondering if they will get sick and inadvertently pass COVID-19 to their family and friends. In many cases, they are forced to take off work for weeks at a time because of possible COVID-19 exposure. Too often this leaves their families in financial ruin. While many essential workers have contracted COVID-19 and recovered, some have had tough recoveries and a few have unfortunately, died. This has led to many questions about how the workers’ compensation system should handle those deemed essential workers who contract COVID-19.
The burden of proving that an illness was contracted at work falls on the injured worker. This is difficult with a virus like COVID-19 because people can have exposures not just at work, but at the grocery store, and in every other aspect of their daily life. In Maryland there are several presumptive laws to protect injured workers who are at a greater risk for developing certain diseases like fire fighters who develop cancer from work exposures. The question is whether or not there should be a similar type of presumption for those Marylanders who are on the front lines and develop COVID-19.
Presumptive laws work by shifting the burden of proof so that in the case of COVID-19, if a specially deemed essential workers gets the virus, we would start with the presumption that they contracted the virus at work and then the burden of proof would go to the Employer and Insurance company to prove that the worker did not get the virus at work.
Several states have already chosen to pass emergency legislation to create an automatic presumption for exposed first responders and healthcare workers. For example, Minnesota enacted an emergency bill that states “[a first responder or healthcare worker] who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment.” Similarly, Kentucky passed an executive order stating “it shall be presumed that removal of [a first responder or healthcare worker] from work by a physician is due to occupational exposure to COVID-19.”
We will likely have to wait until the next legislative session in 2021 to see if Maryland adopts something similar to Minnesota and Kentucky.