The Governor signed S.342 into law on July 13, 2020.
S.342 was introduced in the Vermont Senate in April 2020 to address the
COVID-19 pandemic and its impact on the workers’ compensation system. The
full text of the bill as signed into law is here: https://legislature.vermont.gov/Documents/2020/Docs/BILLS/S-0342/S-0342%20As%20Passed%20by%20Both%20House%20and%20Senate%20Official.pdf
The Act gives the Commissioner of the Department of Labor
the ability to issue guidance and adopt procedures to extend deadlines or
temporarily amend or waive specific provisions of 21 V.S.A. Chapter 9 and the
rules adopted pursuant to that chapter during the declared state of emergency.
Governor Phil Scott declared a state of emergency in Vermont on March 13,
2020, and the declaration has been extended through August 15, 2020. The
Act provides that any guidance or temporary procedures that are adopted by the
Commissioner are effective during the state of emergency and then continue for
45 days after the termination of the state of emergency. It is important
to note that the Commissioner does not have to engage in the usual rulemaking
process to adopt the guidance or temporary procedures.
The Act creates a presumption of compensability for
“front-line” workers who die or are disabled resulting from COVID-19 if the
worker has a positive laboratory test for COVID-19 or a diagnosis of COVID-19
from a licensed healthcare provider between March 1, 2020 and January 15,
2021. A “front-line” worker is an individual with an elevated risk of
COVID-19 exposure (a job that requires the worker to have regular physical
contact with known sources of COVID-19 or regular physical or close contact
with patients, inmates in a correctional facility, residents of a residential
care or long-term care facility, or members of the public in the course of
his/her employment) employed as: a firefighter; law enforcement officer;
emergency medical personnel (volunteer or paid); a worker in a health care
facility; institution or office where healthcare services are performed by
healthcare professionals; a correctional officer; a worker in a long-term care
or residential care facility; a childcare provider providing childcare to
children of front-line workers; a home healthcare worker or personal care
attendant; a worker in a morgue, funeral establishment, or crematory facility;
and a worker performing services that the Commissioner determines place the
worker at a similarly elevated risk of being exposed to or contracting COVID-19
as the other listed occupations. “Close contact” is defined as contact
within six feet.
The Act also creates a presumption of compensability for
death or disability resulting from COVID-19 for employees who are not
front-line workers who have a positive laboratory test for COVID-19 or a
diagnosis of COVID-19 from a licensed healthcare provider between April 1, 2020
and January 15, 2021. The presumption only applies if the worker within
14 days prior to the date he/she is tested: had documented occupational exposure
in the course of employment to an individual with COVID-19; or performed
services at a residence or facility with one or more residents or employees who
were either present at the time the services were performed and either had
COVID-19 at the time or tested positive for COVID-19 within 14 days after the
services were performed.
Importantly, the presumption of compensability for
non-front-line workers does not apply if it is shown by a preponderance of the
evidence that the disease was caused by non-employment-connected risk factors
or non-employment connected exposure. Additionally, the presumption of
compensability for non-front-line workers does not apply if the employer can
show by a preponderance of the evidence that: the disease was caused by non-employment-connected
risk factors or non-employment-connected exposure; or at the time the employee
was potentially exposed to COVID-19 the employee’s place of employment was in
compliance with the relevant COVID-19 related guidance for businesses and workplaces
issued by the U.S. CDC and the Vermont Department of Health and any similar
guidance issued by local municipalities (between April 1, 2020 and April 20,
2020) and the Restart Vermont Worksafe Guidance issued by the Agency of
Commerce and Community Development and any similar guidance issued by local
municipalities (between April 20, 2020 and January 15, 2021).
The Act takes effect on passage and is retroactive to March
1, 2020. The Act contemplates that sections 1 and 2 (pertaining to
guidance and procedures adopted during the state of emergency and to the
presumptions of compensability) are repealed on January 15, 2021, unless there
is subsequent legislation to the contrary.
COVID-19 related legislation is untested at this point in
Vermont. There may be litigation in the future surrounding the
presumption of compensability for non-front-line workers and the Commissioner’s
determination of an employee as being in the “elevated risk” category.
