The Waiting is the Hardest Part; No Resolution in Proposed COVID-19 Legislation in Maryland
In response to the COVID-19 pandemic, Maryland lawmakers drafted several proposed bills addressing presumptions for workers in specified industries who are diagnosed with COVID-19. However, with the General Assembly Session recently concluded, the workers’ compensation community will have no answers on these potential presumptions until at least 2022.
Two of the key bills—House Bill 1199 and Senate Bill 813—sought to implement a presumption of compensability for firefighters and first responders, childcare workers, education workers, healthcare workers, and essential workers. The presumption would have applied if three factors were proven by the claimant: 1) the employee was suffering from the effects of SARS-CoV-2; (2) the employee was diagnosed with COVID-19 or tests positive for SARS-CoV-2 or related antibodies; and (3) the employee’s duties required him or her to perform labor or services at a location other than the employee’s home or residence within 14 days of the onset of symptoms.
With no COVID-19 presumptions established in the 2021 Maryland Session, attorneys for both claimants and employers/insurers will treat any and all COVID-19 claims like any other alleged workers’ compensation injury that does not have a legislative presumption. Therefore, in COVID-19 claims that are filed as an occupational disease, the burden remains with the claimant to prove the claimant suffers from an ailment, disorder, or illness, which is the expected result of working under conditions naturally inherent in the employment and which is ordinarily slow and insidious in its approach. Claimants may choose to try to pursue these types of claims as an accidental injury from acute exposure.
Given the “slow and insidious” nature of occupational diseases, claimants face an uphill battle in linking a COVID-19 diagnosis to their occupations. Even if able to clear that legal hurdle, claimants must prove, to a degree of medical probability, that they contracted COVID-19 in the course of their employment rather than through other means.
Alex Dobrusin