Executive Order 7JJJ creates a rebuttable presumption for workers’ compensation claims by essential employees in Connecticut
Employers should still investigate and challenge COVID-19 claims, as employees may bring claims even if the presumption does not apply
Employers should be aware of increased penalties for adverse employment actions in response to COVID-19 claims
On July 24, 2020, Connecticut Governor Ned Lamont signed Executive Order 7JJJ, which creates a rebuttable presumption that a COVID-19 diagnosis arises out of and in the course of employment for workers in certain circumstances. As in other states that have created similar rebuttable presumptions, either by executive order or statute, the Connecticut rule applies to workers’ compensation claims by “essential” workers employed in one of the state’s 16 Critical Infrastructure Sectors as defined by the Connecticut Department of Economic and Community Development (DECD).
WHAT DOES AN EMPLOYEE NEED TO ESTABLISH TO QUALIFY FOR THE PRESUMPTION?
Under the order, an employee is required to satisfy the following in order for the presumption to apply:
- The employee must file a workers’ compensation claim.
- The employee must have tested positive for COVID-19 or been diagnosed with COVID-19 based on their symptoms.
- The employee must provide the employer with a copy of the positive test result or written diagnosis of COVID-19.
- The employee must have lost one or more days of work due to COVID-19 between March 10, 2020 and May 20, 2020.
- The COVID-19 diagnosis must have been confirmed by a positive lab test, or symptoms must have been diagnosed as COVID-19, within three weeks of the missed work day(s).
- The employee must have been directed by their employer to work outside of the home at least one of the 14 days prior to missing work, and there was no work-at-home option.
- The employee must have been employed by an essential employer, as deemed by the DECD pursuant to Executive Order 7H.
Pursuant to Executive Order 7H, the DECD has defined “essential business” as follows:
- Essential workers in the 16 Critical Infrastructure Sectors, as defined by the federal Department of Homeland Security unless otherwise addressed in a prior or future executive order pertaining to the existing declared public health and civil preparedness emergency.
- Healthcare and related operations including:
- biotechnology therapies
- consumer health products and services
- doctor and dentist offices
- elder care, including adult day care
- health care plans and health care data
- home health care workers or aides
- manufacturing, distributing, warehousing, and supplying of pharmaceuticals, including research and development
- medical marijuana dispensaries and producers
- medical supplies and equipment providers, including devices, diagnostics, services, and any other healthcare related supplies or services
- medical wholesale and distribution
- nursing homes, or residential health care facilities or congregate care facilities
- physical therapy and chiropractic offices
- research and laboratory services, including testing and treatment of COVID-19
- veterinary and animal health services
- walk-in-care health facilities
- Infrastructure including:
- commercial trucking
- dam maintenance and support
- education-related functions at the primary, secondary, or higher education level to provide support for students, including distribution of meals or faculty conducting e-learning
- hotels and other places of accommodation
- water and wastewater operations, systems, and businesses
- telecommunications and data centers
- transportation infrastructure including bus, rail, for-hire vehicles and vehicle rentals, and garages
- utilities including power generation, fuel supply, and transmission
- All manufacturing and corresponding supply chains, including aerospace, agriculture, and related support businesses.
- Retail including:
- appliances, electronics, computers, and telecom equipment
- big-box stores or wholesale clubs, provided they also sell groceries, consumer health products, or operate a pharmacy
- convenience stores
- gas stations
- grocery stores including all food and beverage retailers
- guns and ammunition
- hardware, paint, and building material stores, including home appliance sales/repair
- liquor/package stores and manufacturer permittees
- pet and pet supply stores
- Food and agriculture, including:
- farms and farmer’s markets, including urban farms and community gardens
- food manufacturing, processing, storage, and distribution facilities
- nurseries, garden centers, and agriculture supply stores
- restaurants/bars (provided compliance with all applicable executive orders is maintained)
- Services including:
- accounting and payroll services
- animal shelters or animal care or management, including boarding, grooming, pet walking and pet sitting
- auto supply, repair, towing, and service, including roadside assistance
- bicycle repair and service
- building cleaning and maintenance
- car washes
- child care services
- critical operations support for financial institutions
- financial advisors
- financial institutions, including banks, credit unions, and check cashing services
- funeral homes, crematoriums, and cemeteries
- golf courses and driving ranges
- insurance companies
- laundromats/dry cleaning
- legal and accounting services
- mail and shipping services
- marinas and marine repair and service
- news and media
- outdoor tennis per USTA guidance
- real estate transactions and related services, including residential leasing and renting
- religious services (subject to Executive Order 7D limiting gatherings to 50 people)
- storage for Essential Businesses
- trash and recycling collection, hauling, and processing
- warehouse/distribution, shipping, and fulfillment
- Providers of basic necessities to economically disadvantaged populations including:
- food banks
- homeless shelters and congregate care facilities
- human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support social service agencies
- Construction including:
- all skilled trades such as electricians, HVAC, and plumbers
- general construction, both commercial and residential
- other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
- planning, engineering, design, bridge inspection, and other construction support activities
- Services necessary to maintain the safety, sanitation and essential operations of all residences and other buildings (including services necessary to secure and maintain non-essential workplaces):
- building cleaners or janitors
- building code enforcement
- emergency management and response
- fire prevention and response
- general maintenance whether employed by the entity directly or a vendor
- home-related services, including real estate transactions, closings, appraisals, and moving services
- landscaping services
- law enforcement
- outdoor maintenance, including pool service
- pest control services
- security and maintenance, including steps reasonably necessary to secure and maintain non-essential businesses
- state marshals
- Vendors that provide essential services or products, including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:
- billboard leasing and maintenance
- child care services
- essential government services
- government owned or leased buildings
- information technology and information security
- technology support
- Defense and national security-related business and operations supporting the U.S. government or a contractor to the U.S. government
HOW DO EMPLOYERS REBUT THE PRESUMPTION?
The employer may rebut the presumption by filing a Form 43 (denial) denying the claim on the ground that the employee’s COVID-19 illness was not contracted on the job. At a formal hearing, the employer will have the burden of proving the same.
If the employee has not established above requirements, the employer should file a Form 43 specifically denying that the presumption applies, along with any other applicable defenses to the underlying claim. It is important for the employer to take note that in the executive order, Gov. Lamont stated that “an employee who has contracted COVID-19 but who is not entitled to the presumption … shall not be precluded from making” a claim. As an employee can still file a claim even if they are not eligible for the rebuttable presumption, we encourage employers to investigate any COVID-19 claims swiftly and thoroughly, particularly where the employers follow established safety precautions and are actively documenting their efforts to minimize exposure and spread of COVID-19.
ARE THERE ANY OFFSETS OF INDEMNITY BENEFITS FOR COVID-19-SPECIFIC PAID SICK LEAVE BENEFITS?
The employer can reduce the amount of weekly indemnity benefits paid under the workers’ compensation system by any amount of paid sick leave available to the employee through the Emergency Paid Sick Leave Act set forth in sections 5101 et seq. of the Families First Coronavirus Response Act or any other COVID-19-specific paid sick leave program that is separate from any accrued paid time off regularly available to the employee.
ARE THERE ANY INCREASED PENALTIES FOR ADVERSE EMPLOYMENT ACTIONS IN RESPONSE TO A COVID-19 CLAIM?
The executive order forbids an employer from discharging an employee for filing a claim or deliberately misinforming or deliberately dissuading an employee from filing a claim. The order reiterated the penalties found in C.G.S. Section 31-290 for violation of the above, to include: job reinstatement, back wages and benefits, attorneys fees, and costs (civil actions only) and punitive damages (civil actions only).
Goldberg Segalla has industry-experienced attorneys to advise on applicable rules and regulations, guide investigation, and explore available defenses. For more information or immediate guidance, contact:
- Michael D. Schweitzer
- Samantha K. Levasseur
- Andrew J. Even
- Other another member of our Connecticut Workers’ Compensation team