January 27, 2021
by Elyse Lopez

Oregon’s 2021 Legislative Session has Started: SBH’s Watchlist

Elyse LopezThe Oregon State legislative session for 2021 is underway and we have seen several bills introduced in the House and the Senate that will be interesting to watch as they make their way through the legislature.

 SB 488

This bill proposes amending the statutory definition of occupational disease/occupational injury to include “exposure to or infection by SARS-CoV-2 (COVID-19).” This bill appears to be limited to “essential workers.” However, we have seen the Oregon Trial Lawyers Association (OTLA) advocate for a broad definition of those workers in order to encompass more workers under the proposed presumption. The drafted language of the bill outlines a two-prong requirement that a subject worker must meet in order to be considered an “essential worker” under the revised statute.

First, the worker, “[a]t an employer’s direction, must or may work” at either the regular work site or a temporary work site, during the period in which a state of emergency has been declared by the Governor for a location that includes the worker’s work site. It is important to note that the language of this first prong does not include telecommuting, working from home, or remote work as qualifying as a “temporary work site.”

The second prong outlines specific occupations that a subject worker must be employed in to take advantage of the presumption. The bill specifically names public safety personnel, peace offices, medical services providers – which covers hospitals, clinics, pharmacy technicians, and nursing homes – as well as retail and grocery store employees, school employees, child care facility employees, agricultural workers, and janitorial workers as “essential” occupations.

The broad language that OTLA would like to see passed comes in the latter section of the essential occupations section. Any other occupation can be considered under the presumption provision if: (1) there are more than 10 employees at the work site and 10% or more of the employees have tested positive or presumptively positive for exposure to COVID-19; or (2) there are no more than 10 employees at the work site and 2 or more employees have tested positive or presumptively positive for COVID-19.

As discussed in prior Management and Labor Advisory Committee (MLAC) meetings, the insurer and/or self-insured employer does have the opportunity to rebut the presumption if a worker is able to satisfy the two-prong definition above. The presumption can be rebutted (and a claim denial can be issued) only with “clear and convincing evidence” that: (1) the worker does not actually meet the definition of an “essential worker”; or (2) “a known and confirmed source” of COVID-19, unrelated to the worker’s employment as an essential worker caused the worker to become exposed to and/or contract COVID-19.

The presumption topic has been the subject of extensive MLAC meetings throughout 2020. This bill was sponsored by Senator Taylor and was introduced on January 11, 2021. It was referred to Labor and Business on January 19, 2021. Currently, there are no committee meetings or floor sessions scheduled for this bill. SBH will continue to monitor the progress of this bill throughout the current legislative session.

SB 489

This bill, like SB 488, was introduced on January 11, 2021 by Senator Taylor. It was also referred to Labor and Business on January 19, 2021. This bill would remove the restriction on the authorization of retroactive temporary disability compensation. Specifically, if passed, the language of ORS 656.262(4)(g) would omit the following provision: “No authorization of temporary disability compensation by the attending physician or nurse practitioner under ORS 656.268 shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance.”

The implications of omitting this provision would allow greater claim exposure for retroactive temporary disability benefits as workers could reach back even further than 14 days – despite any potentially late authorization from their attending physician. In conjunction with omitting the language above, the bill also adds subsection (j) to state that the insurer/self-insured employer cannot suspend temporary disability benefits without notifying the worker “in writing for the basis of the suspension no later than the date on which the [benefits]” would have been paid. Again, this creates greater hardship on insurers/self-insured employers to take on more administrative management of the claim or be in violation of the rule – which will subject them to penalties and penalty-related attorney fees.

The final proposed change to the statute would limit the insurer/self-insured employer’s ability to recover overpayments. Specifically, under the language of the proposed provision, a credit or offset may not be taken against any benefits/payments owed to a worker (A) “with respect to any benefits or payments that were paid more than two years before” the credit/offset would be taken; or (B) “[i]n an amount greater than $5,000.00 for any claim of the worker” with the insurer/self-insured employer. This provision would not apply when a credit/offset is sought for fraud.

As with the presumption bill, there are troubling implications for insurers and self-insured employers if SB 489 is passed. SBH will continue to monitor the progress of SB 489 through the legislature.

If you have any questions about SB 488 or SB 489, please contact me at or 503-412-3111.