Trial Attorneys and Unions Pushing for COVID-19 Presumption Legislation

On June 23, 2020, Governor Brown directed the Management-Labor Advisory Committee (MLAC) to explore any gaps in our current workers’ compensation system related to COVID-19, including at looking to whether a presumption of compensability is needed to ensure workers are protected under the current system. The governor instructed the committee to provide a response by mid-July to prepare for an upcoming legislative session.

MLAC held six meetings to take testimony from workers, attorneys, employers, insurers, administrators, and state officials discussing a list of potential issues. The issues were categorized into worker’s compensation issues MLAC could address and health/safety issues that MLAC could make recommendations, but ultimately would need to be addressed by other agencies.

Ultimately, MLAC could not reach a unified recommendation on the presumption issue. The labor members recommended proceeding with a presumption, which would require the legislature to change the current statutes and require the governor to sign into law. The management members recommended proceeding with only administrative rulemaking to increase the investigation requirements for COVID-19 claims.

While nothing has been finalized, there are generally three proposals being discussed.

• SAIF put forward rule changes that would codify their current best practices on investigating these claims:
o Applies to all workers
o Requires a reasonable investigation into the claim
o Requires carrier to wait at least 14 days before issuing denial so that interim temporary disability would be paid (with proper authorization)
o Requires a medical opinion in order to deny a claim
o Requires audit of employers/carriers with unusually high denial rates

• Unions have put forward draft language:
o Only applies to essential workers as defined by Gov. Brown’s March 23, 2020 order
o Would make claim compensable if the worker was (1) quarantined by employer, medical provider, or health authority, or (2) worker receives a COVID-19 diagnosis, presumptive positive test, or lab confirmed positive test
o Could only be rebutted by showing the worker did not qualify for the presumption
o Would not allow for evidence of potential or confirmed off work exposures
o Does not have an end date

• The Oregon Trial Lawyers Association also put forward draft language:
o Only applies to new list of essential workers
o Would make claim compensable if the worker was (1) exposed at work to known or suspected source of COVID-19 and is ordered to quarantine or becomes symptomatic, or (2) becomes symptomatic and receives a COVID-19 diagnosis from health authority, lab testing, or a presumptive positive test
o Would allow employer to rebut the presumption only with clear and convincing evidence the worker did not qualify for the presumption or clear and convincing evidence of a confirmed off work exposure
o Would retroactively apply to dates of injury on or after March 8, 2020
o Would expire 180 days after the governor lifts the state of emergency

All of the proposals, testimony, and information from these meetings can be found on MLAC’s website. You can read MLAC’s full recommendation here.

The Oregon legislature will likely be meeting soon to discuss these and other issues. All three proposals are likely open to further revisions, so if you would like to voice your opinion, support/concern, or have questions about any of them, please contact me. If you have any questions about investigating or processing COVID-19 claims under the current system, please contact me at 503-595-2130 or kanderson@sbhlegal.com.