As of August 28, 2020, Honolulu firefighters are asking the mayor of their city to make it easier for them to obtain workers’ compensation benefits related to COVID-19. Specifically, the firefighters are hoping that the mayor will enact a legal presumption in their favor.
This would mean that if a firefighter gets sick with COVID-19, it would be presumed that they got it while on the job and therefore are eligible for workers’ comp benefits. The local government or its insurance company would then have the burden of overcoming that presumption by showing that, in fact, the firefighter contracted COVID-19 from somewhere other than work.
A New Presumption Sets a New Legal Standard
This would create a different legal standard than the usual one in workers’ compensation cases, where the burden is on the employee to establish that an injury or illness occurred on the job. If the change goes into effect, it would be significantly easier for firefighters to obtain workers’ comp benefits.
Honolulu is not the only jurisdiction to consider this kind of legislation; a few months ago I shared on LinkedIn that Governor Ned Lamont of Connecticut had issued an executive order also creating a presumption in favor of workers who contacted COVID-19 during the early part of the pandemic.
This is a sensible policy, and I believe the Maryland legislature should follow suit for Maryland workers’ compensation claims. For months, frontline workers such as doctors, nurses, nursing home staff, police officers, and firefighters have had to venture out and do their jobs in the midst of the pandemic.
For those who contracted COVID-19, many of them would have almost certainly gotten sick while at work and in close proximity to patients or co-workers who have the disease. Our government should pave the way for those individuals to more easily obtain workers’ compensation benefits to help cover the costs of their treatment and ensure they are not forced to use sick or vacation time to cover their missed workdays.
A Rebuttal is Still Possible, Even With a Favorable Presumption
The presumption would be rebuttable, meaning that the worker would not be guaranteed benefits. The employer/insurer would still have the chance to show that the employee contracted COVID-19 outside of work.
The presumption could also be limited to only encompass certain classes of essential employees. It may also be limited to a specific period of time – perhaps the first few months of the pandemic.
These limitations would create a fair balance between the right of employees to be compensated and the rights of employers/insurers to not have a tremendous new front of liability thrust upon them due to unprecedented circumstances.
Precedent for the Presumption Exists in Maryland
The concept of a legal presumption is not unheard of in Maryland. Certain emergency personnel such as firefighters and police officers already benefit from presumptions in their favor. Maryland Code of Labor and Employment Section 9-503 establishes that certain emergency personnel who develop heart disease, hypertension, or lung disease are entitled to a presumption in their favor that they developed those conditions as work-related occupational diseases.
There are also already presumptions in place for certain individuals who contract some types of cancer and Lyme disease. This goes to show that our legislature is already familiar with the concept of making it easier for certain individuals – those who put their lives and bodies on the line – to obtain workers’ compensation benefits.
Regarding the current pandemic, it makes sense to again create a presumption in favor of benefits for frontline employees in light of the courage and dedication they display by showing up to work during the pandemic.
Have a Legal Question? We Have Answers
When you need to learn more about your rights, the attorneys at Zirkin & Schmerling Law can help. Contact us or call us at (410) 753-4611 to set up an appointment with one of our experienced workers’ compensation lawyers today.