Please ensure Javascript is enabled for purposes of website accessibility

Editorial Advisory Board: COVID-19 and workers’ compensation

During nearly two full years of the pandemic of COVID-19 and its variants, Maryland first responders and health care employees have had our backs. If and when such employees fall ill from providing such protection and service, Maryland law should not turn its back on them.

As long as such employees have protected themselves from COVID by being fully vaccinated against that virus, they should be compensated under Maryland’s workers’ compensation system if they nonetheless contract the virus in the course of performing their work duties.

To ensure that will happen, Maryland state Sen. Michael A. Jackson, D-27, has introduced Senate Bill 0010, an emergency bill titled: COVID–19 Occupational Disease Presumption. That bill covers multiple employees who work as first responders and/or as health care workers who work in settings in which patients diagnosed with COVID-19 are treated.

The bill also covers members of the National Guard, which is reasonable because in Maryland they provided direct services to persons with COVID-19, and correctional officers, sensible because of the high rate of infection among prisoners and others in Maryland correctional facilities.

For these workers, Jackson’s bill would mandate that COVID-19 is presumed to be an “occupational disease” and compensable under Maryland workers, compensation if the worker after March 1, 2020, was diagnosed with or tested positively for COVID-19 within 14 days of performing such above-described work.

That presumption would be rebuttable with substantial evidence that the reasons the worker had COVID-19 (or was found to have it) did not arise out of or in the course of that worker’s employment. The bill is an emergency measure that would have to be passed by three-fifths of the General Assembly and would expire on July 21, 2023.

Other limits

Jackson’s bill does not affect the provisions of Maryland workers’ compensation law that would allow an employer or other party to gather the facts and evidence that could rebut the presumption. The bill’s own terms also set other limits on when the presumption will apply, such as that the test or diagnosis finding the worker has COVID must be carried out by a legally authorized health care practitioner.

Consequently, any positive “home tests” would have to be confirmed by such a practitioner. And, no, that would not permit all employees covered by Jackson’s bill, and not even all health care employees covered by it, to conduct their own home testing to obtain the presumption.

In addition, as stated at the outset, this board urges amendment of this or any similar bill to provide that workers who did not receive available vaccines against COVID-19 should not be granted a presumption or any advantage in claiming workers’ compensation, unless the worker proves they had a legally recognized exemption from such vaccination.

So-called “traveling” health care employees in Maryland are already being paid at multiple times the compensation of health care employees and first responders who have been treating COVID-19 patients in Maryland for almost two years.

Less assurance

Under these circumstances, denying Maryland’s front-line employees workers compensation benefits from COVID-19 illness that they likely contracted at work would be a slap in the face to them. Providing them, under limited circumstances and only for purposes of already-limited workers’ compensation, with a rebuttable presumption that their COVID-19 was caught at work would help assure that, in addition to other suffering, they won’t also have to be afflicted by injustice.

Now that the U.S. Supreme Court has struck down the federal vaccine mandate for all employees working for employers with 100 employees or more, first responders and health care employees have less assurance that persons whom they are directly serving and contacting are fully vaccinated. And that is risky for such employees, as it’s becoming increasingly clear that with the easily transmissible omicron variant, even existing vaccines are not full protection for all vaccinated persons from severe illness, and fully vaccinated  persons with the delta and/or omicron variants were already able to spread the virus.

It may be that other workers are deserving of the same presumption — supermarket, delivery and transit employees with relatively few benefits come to mind. But it seems unlikely even those employees, or any others, are more deserving than the first responders and others providing direct care to patients with COVID-19.

We should not allow the perfect to become the enemy of the good. However imperfect the proposed bill is, there is an awful lot of good that it will achieve in the form of substantial justice for a well-deserving cohort of our fellow beings.  So, for now, we urge Maryland’s General Assembly to enact, with the suggested amendment, Jackson’s bill to safeguard the employees who have done so much to preserve and/or advance the health and safety of all Marylanders.

Editorial Advisory Board members Arthur F. Fergenson, Julie C. Janofsky, Ericka N. King and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.