The coronavirus pandemic presents unique challenges regarding evaluation of workers’ compensation claims by employees who claim to have contracted COVID-19 in the course of their employment. Florida and other states have taken varying approaches to such claims.
On March 30, 2020, Florida Chief Financial Officer Jimmy Patronis issued Directive 2020-05, which directs the Division of Risk Management to extend worker’s compensation coverage to state employees who are on the “front line” of the state’s COVID-19 response efforts. The directive (and the accompanying press release) can be viewed here. This Directive creates a rebuttable presumption that certain state employees who test positive for COVID-19 contracted the disease in the course of employment, shifting the burden to the State to prove otherwise. It provides:
- The Division of Risk Management shall process Workers’ Compensation claims submitted by Frontline State Employees who have tested positive for COVID-19, through a reliable method, as compensable claims for occupational disease pursuant to Section 112.1815, Florida Statutes, and Chapter 440, Florida Statutes, unless the State of Florida can show, by preponderance of the evidence, that a Frontline State Employee contracted COVID-19 outside his or her scope of employment as a state employee.
The Directive defines “Frontline State Employees” to include only first responders, corrections officers, state employees working in the healthcare field, child safety investigators, and members of the Florida National Guard. It further provides that the Division of Risk Management must process claims “without regard to whether any other non-compensable factor may have contributed to the Employee contracting COVID-19, and compensation shall not be reduced because of any other potential causative factors.” However, it also provides that the head of any executive or cabinet agency may opt out of the provisions of the Directive by providing written notice.
On April 6, 2020, David Altmaier, Commissioner of the Florida Office of Insurance Regulation, issued Informational Memorandum OIR-20-05M in part in response to Directive 2020-05. The Memorandum can be viewed here. The Memorandum reiterates existing Florida law, including the coverage requirements of Florida Statutes sections 440.09 (requiring coverage of compensable injuries arising in the course of employment) and 440.151 (governing occupational disease), Florida Statutes, but it contains no additional or different requirements with respect to private employers and insurers.
Other states have implemented more significant measures affecting evaluation of workers’ compensation claims involving COVID-19. The Illinois Workers’ Compensation Commission, for example, revised its rules of evidence governing workers’ compensation adjudications by establishing a rebuttable presumption that employees in certain occupations who test positive for COVID-19 contracted the disease in the course of employment. In Kentucky, the governor has issued an executive order creating similar presumption applying to a broader range of occupations. To date, however, Florida has not taken similar additional measures.
Eric J. Holshouser
Samuel J. Horovitz
Robert G. Riegel, Jr.
Michael J. Lufkin
Kathryn K. Rudderman