On April 15, 2020, Wisconsin Governor Evers signed into law a comprehensive bill related to the COVID-19 pandemic. The bill is effective April 17, 2020. The bill impacts numerous areas of law, including worker’s compensation. The new statutory provision provides a presumption that, where an injury to a “first responder” is found to be caused by COVID-19, the injury is presumed to be caused by the employment.
The intent of the law is to ensure that first responders who contract COVID-19 have the advantage of a presumption that the condition was contracted at work.
Below are some general FAQs to provide insight into this new statute:
When is the presumption in effect?
The presumption is effective during the public health emergency, which was declared by the Governor on March 12, 2020, under Wis. Stat. 323.10 by Executive Order 72, and for 30 days after termination of that Executive Order.
What classifications of employees are covered by the new statute?
The new statutory provision covers “first responders.” For purposes of the applicable subsection, the statute specifically defines a “first responder” as an employee or volunteer for an employer that provides fire fighting, law enforcement, medical or other emergency services AND who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual’s work for the employer.
The new statutory provision does not define the terms “regularly,” “direct contact,” or “close proximity."
Does an employee covered under the statute need to test positive for COVID-19?
No, the statute does not require a test. However, if there is not a positive COVID-19 test, there must be a specific diagnosis of COVID-19 by a physician.
Can a COVID-19 claim be denied for an employee in a covered employment class?
Yes, the statute requires that the employee be both in the specific covered employment classification and provide the documentation of a positive test or diagnosis of COVID-19 by a physician. If there is no documentation of the positive test or diagnosis of COVID-19 by a physician, a claim can be denied.
Additionally, all individuals who are “first responders” are not covered. An individual must also have regular, direct contact with, or be regularly in close proximity to, patients or other members of the public requiring emergency services, within the scope of the individual's work for the employer.
Further, even if an employee sustains an otherwise covered injury, the presumption may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder’s work for the employer. We anticipate that this will be a difficult standard to meet.
Can other classifications of employees claim COVID-19 as a work related injury? Can employees in the designated classifications who contracted COVID-19 before or after the effective dates claim that the condition is work-related?
Yes, employees not in the covered classification can claim COVID-19 as work-related, but those employees do not obtain the benefit of the presumption. Non-covered employees must establish that contracting the disease arose out of their employment while the employee was performing services growing out of and incidental to employment.
The Wisconsin Legislature continues to meet and may pass additional laws that impact worker’s compensation. Arthur Chapman’s Worker’s Compensation practice group is constantly monitoring this fluid and evolving situation. Please call us with any questions relating to your specific business needs.