Earlier this year, HammondTownsend discussed new provisions of workers’ compensation law with retroactive effect for certain employees who contracted COVID-19 in this blog. The key aspect of the new provisions is a rebuttable presumption that an employee contracted COVID-19 at work. The new provisions are contained in this statute.
The new provisions apply to two categories of employees. One category is healthcare providers. The presumption for this category begins on March 12, 2020, and ends on December 30, 2021.
The other category is firefighters, emergency medical services personnel, law-enforcement officers, correctional officers, and regional jail officers. The presumption for this category begins on July 1, 2020, and ends on December 30, 2021.
The new provisions became effective on July 1, 2021. Thus, as to the first category above, the new provisions are retroactive for the period from March 12, 2020, through June 30, 2021. As to the second category above, the new provisions are retroactive from July 1, 2020, through June 30, 2021.
A threshold issue regarding the new provisions is whether their retroactivity violates the Constitution of Virginia. To date, no judicial tribunal has addressed this issue.
Even if the constitutional issue were not present, the new provisions still demonstrate the advisability of retaining counsel when pursuing workers’ compensation benefits for COVID-19. For example, the new provisions impose different requirements on a healthcare provider depending on when the provider developed COVID-19. A provider who developed COVID-19 on or after July 1, 2020, must produce the following evidence to gain the presumption:
— There must be evidence that the claimant is a healthcare provider as that term is defined. Va. Code § 65.2-402.1(B)(1).
— There must be evidence that, “as part of the [claimant’s] employment[, the claimant] is directly involved in diagnosing or treating persons known or suspected to have COVID-19.” § 65.2-402.1(B)(1) (emphasis added).
— There must be evidence that the claimant “presented with signs and symptoms of COVID-19 that required medical treatment.” § 65.2-402.1(F)(2)(b).
— There must be evidence of either “a presumptive positive test or a laboratory-confirmed test for COVID-19.” § 65.2-402.1(F)(2)(b).
— There must be evidence that, after the aforesaid (i) presentation with signs and symptoms and (ii) presumptive positive or laboratory-confirmed test, “the claimant received a positive diagnosis of COVID-19 from a licensed physician, nurse practitioner, or physician assistant.” § 65.2-402.1(F)(2)(b).
HammondTownsend is a Virginia workers’ compensation law firm with offices located around the Commonwealth. If you fall within the class of employees described above and contracted COVID-19, please do not hesitate to contact HammondTownsend for a free consultation. We can help you with the workers’ compensation process from start to finish.