Virginia’s frontline workers scored a victory on Saturday when the General Assembly nearly unanimously passed two bills making it easier for health care providers and first responders to claim workers’ compensation for contracting COVID-19 on the job.
But the issue — a longstanding concern for workers throughout the pandemic — initially sparked a showdown between the House and Senate over the potential cost of the legislation and whether it should apply retroactively. Legislators involved in the negotiations said they had to recruit former Gov. Terry McAuliffe, who is seeking the Democratic nomination for his old job, to broker a deal with Senate Majority Leader Dick Saslaw, D-Fairfax.
“We threw a hail Mary,” said Del. Chris Hurst, D-Montgomery, who filed the legislation expanding workers’ compensation access for health care providers. Both his bill, and a similar measure sponsored by Del. Jay Jones, D-Norfolk, would have made it possible for providers and first responders to file retroactive claims dating to March 12 of last year — when Gov. Ralph Northam first declared a state of emergency over the COVID-19 pandemic.
The Senate version of Jones’ bill, sponsored by Saslaw, initially contained a clause making it retroactive to March 1, 2020. But Senate committees ultimately stripped retroactivity from all three measures after the state’s Department of Planning and Budget warned the fiscal impact was “indeterminate.”
Localities, especially, have long argued that dating the bill back to March could lead to hundreds of additional COVID-19 claims from their employees, who would now be presumed to have contracted the virus on the job. That’s a financial burden that they — and their insurers — aren’t prepared to shoulder, representatives from cities and counties argued.
“Local governments and risk insurance providers haven’t budgeted for an expansion of the liability to cover additional presumptions related to COVID-19,” Jeremy Bennett, the director of intergovernmental affairs for the Virginia Association of Counties, said during a committee hearing last month, adding that it could have a “multi-million dollar impact.”
“We do not yet know if the number of infections will increase further or when the vaccine for the virus will be fully distributed to first responders,” he said. “Furthermore, the unknown latent impacts of COVID-19 are still being studied and could potentially have an impact on lifetime workers’ compensation medical rewards.”
Without a retroactivity clause, the legislation would only apply to claims filed on or after July 1, 2021, when both bills go into effect. Advocates say that wouldn’t offer much protection to frontline employees — most of whom will already be vaccinated by that point.
“For any nurse or health care provider who contracted COVID, if you can’t go back and claim workers’ compensation, it makes you feel like no one cares about you,” said Holly Zimmerman, a nurse who became severely ill from the virus in late July while working at a nursing home in Patrick County.
“I’ve heard the argument about the financial demands on the system — that employees haven’t paid in,” she added. “And it makes me angry. It makes me think that you’re putting money in front of peoples’ lives.”
Both Jones and Hurst also disagreed with the estimate, which Jones said would require virtually every eligible worker to claim — and be rewarded — the benefits. But it created a barrier in the Senate, where Saslaw remained concerned over the potential costs.
“I figured that I needed to reach out to people who would have his ear and get his attention,” Hurst said. Saslaw did not respond to a request for comment, but McAuliffe’s office said there were multiple calls with the senator to reach a compromise.
For health care workers, the result was full retroactivity dating back to March 12. The final bill is limited to providers directly involved in “diagnosing or treating” COVID-19 patients, and doesn’t apply to workers who refuse a COVID-19 vaccine unless a physician rules that it would jeopardize their health.
The legislation also stipulates that any worker filing a claim must have been officially diagnosed with the virus. For claims dating prior to July 1, 2020, the diagnosis can come from a positive test and symptoms requiring medical attention, or from symptoms alone — reflecting the testing shortage in the early days of the pandemic, Hurst said.
Any claim after July 1 requires diagnosis through a positive test and symptoms requiring medical attention. Brent Rawlings, the senior vice president for the Virginia Hospital and Healthcare Association, described the requirements as “appropriate guardrails” that helped the association get onboard with the bill.
“We struggle with the presumption, but we know the challenge of COVID-19 for our health care workers,” he said during a committee hearing in January.
The bill will make workers’ compensation more accessible for thousands of frontline health care workers by classifying COVID-19 as an occupational disease. Without that presumption, the virus is considered an “ordinary disease of life” similar to the flu. Attorneys say that makes it nearly impossible to qualify for benefits unless employees can provide unequivocal proof that they contracted the virus at work.
VACORP — the state’s largest insurer for counties and local agencies — “and other insurance carriers are saying ‘clear and convincing evidence,’ which is basically almost as high as ‘beyond a reasonable doubt,’” Mike Beste, a worker’s compensation attorney in Richmond, said in an interview earlier this year. According to data from the Virginia Workers’ Compensation Commission, more than 1,100 total COVID-19 related claims have been filed since the start of the pandemic, but only 276 have been awarded.
But when COVID-19 is considered occupational, the burden shifts to the employer to prove that the disease wasn’t contracted at work. Zimmerman said the benefits would offer a lifeline. She contracted the virus at the end of July, after caring for the first resident in her facility to die from it.
Since then, she’s suffered with long-term symptoms including shortness of breath and difficulty concentrating that she says left her unable to work. Her immediate symptoms were three grand mal seizures and a severe respiratory infection that left her with more than $30,000 in hospital bills.
Zimmerman said she’s qualified for medical assistance and food stamps, but currently has no source of income except for the $375 a month she charges her housemate for rent.
“At least now I can go back after the fact and say, ‘Look, I got this at work. I need help,” she said. “Financially, I’m never going to get back to where I was. But at least I’d have some assistance in trying to re-establish some financial security.”
The General Assembly budgeted $2 million in benefits for state employees in anticipation that retroactivity would be included in both bills. The final agreement on Jones’ and Saslaw’s legislation, though, only extends the presumption back to Sept. 1.
In most other respects, it closely resembles Hurst’s. The bill applies to firefighters, emergency medical service workers, law enforcement and corrections officers, including regional jail employees. It requires an official diagnosis through a positive COVID-19 test and symptoms of the disease.
“Sept. 1 was as far back as the Senate was willing to go, and I would rather have had something than nothing,” said Jones, who filed his first version of the bill during the General Assembly’s special session last fall.
That legislation, which incorporated medical providers and teachers, died in a Senate committee after similar concerns were raised over the potential cost.
Expanding access to workers’ compensation has been a priority for many first responders, but particularly for EMS workers, who say they’ve frequently been called to respond to homes and medical facilities without being notified of COVID-19 cases (state legislators also passed a bill from Del. Lashrecse Aird, D-Petersburg, that requires the Virginia Department of Health to develop a system for sharing that information in real time).
“One of the first COVID cases that we dealt with in the commonwealth was somebody that was responding to an auto accident,” said Brian Hricik, president of the Virginia Association of Governmental EMS Administrators. “They had no index of suspicion that the person they were responding to had COVID. And then all of a sudden, they get a phone call later on saying, ‘You know that patient you brought into the hospital? They tested positive.’”
The EMS provider also ended up testing positive for COVID-19 in March, Hricik said. Those early cases were what spurred first responders to advocate for retroactivity — particularly for volunteer firefighters and EMS workers who don’t receive employment-based health benefits.
“Having some retroactivity is better than none,” he added. “But I’m disappointed for those who were affected early on.”
Jones, though, said House lawmakers still haven’t abandoned hope of extending the presumption back to March. One possibility is working with Northam to amend the bill and bring it back for a vote during the General Assembly’s reconvened session in April.
“We have not given up the ghost just yet,” he said.