Wednesday, July 15, 2020

Workers' Compensation COVID-19 Bill Signed by Governor (S.342)


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. 

Tuesday, April 28, 2020

SENATE BILL S.342 PASSES SENATE, SENT TO HOUSE


S.342, entitled "An act relating to temporary workers' compensation amendments related to COVID-19", passed the Vermont Senate on Monday, April 27, 2020.  The bill was introduced by the Committee on Economic Development, Housing and General Affairs.  

The bill allows the Commissioner to have authority to issue guidance and adopt procedures to extend deadlines or temporarily amend or waive specific requirements of 21 V.S.A. Chapter 9 (the Workers' Compensation Act) and the rules adopted pursuant to that chapter.  The emergency guidance/procedures are effective while Vermont's declared state of emergency lasts and will transition back to the pre-existing rules within 45 days from the end of the state of emergency.  

Most importantly, the bill provides that in the case of a front-line worker, disability or death resulting from COVID-19 shall be presumed to be compensable under the Workers' Compensation Act, provided that the front-line worker receives a positive lab test or diagnosis by a licensed healthcare provider for COVID-19 between March 1, 2020 and January 15, 2021.  

A "front-line worker" is defined as a: firefighter; law enforcement officer; ambulance service, EMT personnel, first responder, or volunteer; worker in a health care facility or institution or office where health care services are provided by licensed healthcare professionals; correctional officer; worker in a long-term care facility or residential care facility; childcare provider required to provide childcare to the children of other front-line workers; employee of a pharmacy or grocery store; home health care worker or personal care attendant; and "a worker performing services that the Commissioner determines place the worker at a similarly elevated risk of being exposed or contracting COVID-19 as the other occupations listed in this subsection (a)."

There is also a presumption of compensability for disability or death resulting from COVID-19 for a non-front-line worker if the worker has a positive laboratory test or diagnosis by a licensed health care provider for COVID-19 between March 1, 2020 and January 15, 2021 AND either: had documented occupational exposure in the course of employment to an individual with COVID-19; or performed services at a residence or facility with residents or employees who were present at the time that the services were performed and either had COVID-19 at that time or were diagnosed with COVID-19 within a reasonable period of time after the services were performed.

The presumption for both front-line workers and 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.  Further, the presumption of compensability does not apply if the employer offers a COVID-19 vaccine that is refused by a worker who is subsequently diagnosed with COVID-19.

S.342 was sent to the Vermont House on Monday, April 27, 2020.  We will be following this story and will update here when we receive further information.

A link to the Vermont Legislature's page for S.342 follows:  


Tuesday, January 7, 2020

NEW MILEAGE RATE AND DATES SET FOR SPRING 2020 CONFERENCE - MAY 19 AND 20, 2020

Effective January 1, 2020 the Workers’ Compensation mileage reimbursement rate decreased from $.58 to $.575 per mile.  The mileage reimbursement rate as determined by Rule 4.1310 is for mileage traveled for medical treatment, to attend an employer’s independent medical examination or attend a vocational rehabilitation meeting.  The rate is the rate that is in effect for classified state employees. 

This rate became effective January 1, 2020.

We will link to the Meal and Mileage Reimbursement Rates once the document is updated on the Department of Labor's Website.

The Spring conference will be May 19th and 20th, 2020 at the Hilton Burlington – this is a Tuesday and Wednesday.  We do not currently have registration information available, but we will update once it is available.

The hotel reservation information is below:

Central Reservations Office at 1-800-HILTONS (445-8667), and mention your group, VT DOL WC Adjusters, to get the special discounted rate.

Visit your personalized group web page at

Group Name:



VT DOL WC Adjusters
Group Code:
VT DOL

Monday, June 10, 2019

COLA RATE FOR 2020 ESTABLISHED - NEW MAXIMUM AND MINIMUM RATES

MEMORANDUM


TO:                         All Workers’ Compensation Insurance Carriers, Adjusters and Self-Insureds

FROM:                  J. Stephen Monahan, Director
                                Workers’ Compensation and Safety Division

DATE:                    June 7, 2019

SUBJECT:             Annual Adjustment of Workers’ Compensation Benefits
 



The new Form 28(FY20) and the Form 28A(FY20), which you should use to update claimant’s rates as of July 1, 2019, are now available.  You can download both forms from our web site at:  http://labor.vermont.gov/forms/#comp.  Please make copies as needed.

The new maximum for those injuries arising after June 30, 1986 is $1,353.00.  The new maximum for injuries prior to that date is $902.00.  The minimum in all cases is $451.00.

Please be aware of the requirement to forward a copy of the Form 28 to the injured worker or dependent.

The multiplier for FY 2020 is 1.032.

Monday, January 28, 2019

VERMONT WORKERS' COMPENSATION ADJUSTERS' CONFERENCE - JUNE 13, 14, 2019!!!

The Vermont Workers' Compensation Adjusters' Conference will be held on June 13 and 14, 2019 at the Hilton Hotel, located in Burlington, Vermont.

To register for the conference please use the following link:   http://www.cvent.com/d/86q8wj/4W

SAVE THE DATE!!!  For anyone who wants to visit Vermont in the fall, the Fall Conference will be held on November 7 and 8, 2019.  More details to follow. 

Thursday, January 10, 2019

Mileage Reimbursement Rate Increase, Effective January 1, 2019


Effective January 1, 2019 the Workers’ Compensation mileage reimbursement rate increased from $.545 to $.58 per mile.  The mileage reimbursement rate as determined by Rule 4.1310 is for mileage traveled for medical treatment, to attend an employer’s independent medical examination or attend a vocational rehabilitation meeting.  The rate is the rate that is in effect for classified state employees. 

                This rate became effective January 1, 2019.


Friday, November 9, 2018

ATTENTION!!! Proposed Vocational Rule WITHDRAWN by Department of Labor!!!!!


We received the below Memorandum today regarding the proposed vocational rule.  Please note that the proposed rule has been withdrawn by the Department of Labor, and the current vocational rehabilitation rule remains effective.  We will update the blog if there are future developments in this matter.


MEMORANDUM
To:                   Charlene Dindo, Committee Assistant - LCAR;
Louise Corliss, APA Clerk – Vermont Secretary of State’s Office
From:               J. Stephen Monahan – Director Workers’ Compensation & Safety Division
Date:               Friday, November 9, 2018
Subject:             Notification that we are withdrawing proposed rule 18-P23 - Department of Labor/Vermont Workers' Compensation Vocational Rehabilitation Rules
After the aborted LCAR hearing on October 18, the Department of Labor met with opponents of the proposed rule to discuss their concerns. Unfortunately, we were unable to come to agreement on the rules, although there was some agreement that statutory changes may be necessary.
The Department has decided to withdraw the proposed rule and leave the existing rule in place. Therefore, it will not be necessary for LCAR to consider the rule at its November 15th meeting.
Thank you for your time.

J. Stephen Monahan
Director, Workers’ Compensation & Safety Division
Vermont Department of Labor
5 Green Mountain Drive
P.O. Box 488
Montpelier, Vermont 05601-0488
(802) 828-2138