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INSIGHT: Who Will Cover the Cost of First Responders With Covid-19?

June 24, 2020, 8:00 AM

With broad bipartisan support, the Senate recently passed a bill which has the potential to upend the administration of workers’ compensation Covid-19 cases across the country.

Senate Bill S.3607, otherwise known as the “Safeguarding America’s First Responders Act of 2020 (SAFRA),” would expand death and disability benefits to first responders under the Public Safety Officers’ Benefit Program (PSOBP). This bill is significant because it creates a general presumption that a first responder who contracts Covid-19 sustained a work injury and is entitled to benefits.

Workers’ compensation practitioners across the nation face the same fundamental question with respect to Covid-19 claims: did the employee contract the disease at work? Individuals may remain asymptomatic for weeks, and the country continues to face inconsistent testing and medical documentation. As a result, it is difficult—and, at times, impossible—to pinpoint when and where the disease was contracted.

Many states have been grappling with this issue as they rush to pass Covid-19 legislation. In this regard, the SAFRA is unique. The legislation recognizes the inherent difficulties posed by the pandemic and creates a general presumption that the disease results in a compensable injury.

In fatal cases, the presumption may only be rebutted with competent medical evidence which demonstrates the death was the “direct and proximate” result of something other than Covid-19. When compared to typical workers’ compensation litigation, this bill effectively flips the burden of proof on its head, and in non-fatal cases, removes the issue of causation entirely.

Significance: Potential to Preempt State Laws

To be clear, the vast majority of insurers will never entertain claims under the PSOBP. This is a federal program with limited reach. That said, the language of the bill is significant in that it has the potential to preempt longstanding state laws regarding the burden of proof in workers’ compensation litigation.

A detailed analysis of federal preemption can be found here, but in general, this is a legal doctrine which states that federal law will supersede state law when both address the same subject matter. This preemption can be either expressly stated in the terms of the legislation, or implied through its structure or purpose.

With respect to implicit preemption, there are two types: field preemption and conflict preemption. The former arises when the federal law is so comprehensive that one can infer that Congress intended the federal law to preempt any state law in that same field. Conflict preemption, as the name implies, arises when there is a conflict between the state and federal law.

Once again, there are two types. The first is impossibility preemption, which arises when it is not possible to comply with both the federal law and the state law at the same time. This is what most envision when they hear the term ‘conflict preemption.’ The other subcategory is obstacle preemption. In its simplest form, obstacle preemption arises when the state law stands as an obstacle, or impediment, to the accomplishment, execution, and goals of the federal law.

There are two final points to note about federal preemption. First, intent is key. Oftentimes, the fundamental issue for courts to decide is whether or not Congress intended the federal law to preempt the state law. Second, there is a general ‘presumption against preemption’ by the courts. This is especially true when Congress legislates in a field traditionally occupied by the states.

With this background in place, the question turns to whether or not the SAFRA would preempt state workers’ compensation laws and create a presumption that any death or disability resulting from Covid-19 is a compensable work injury for all employees.

On its face, the bill only applies to public safety officers and provides only those benefits available under the PSOBP. There is no mention of workers’ compensation, nor any preemptive language. As such, express preemption does not apply.

Moreover, the bill is short. It contains fewer than six hundred words, including headers. It is unlikely that Congress intended the SAFRA to preempt the entire field of workers’ compensation. The strongest arguments arise under the conflict theories of preemption.

Either the presumption of a work-related Covid-19 injury applies, or it does not. This appears to create a clear conflict between the presumptions under the SAFRA and the burdens a claimant typically faces when proving a workers’ compensation claim.

Stronger, still, is the argument that the current evidentiary requirements of state workers’ compensation laws— proving a work injury through substantial, competent evidence—would create an obstacle, or barrier, to accomplishing the goals of the SAFRA.

In this respect, the congressional intent is clear: “The purpose of this Act is to establish a carefully drawn framework wherein claims [arising from first responders’ exposure to COVID-19] can be processed expeditiously and under fair and clear standards.” One can credibly argue that Congress is recognizing the inherent evidentiary hurdles claimants face in these cases, and as such, is creating a floor for workers to obtain benefits. This is a noble goal, but one with unintended consequences.

If the SAFRA is passed into law, vigorous litigation will almost certainly ensue over the application of conflict preemption to the general presumption. And if the preemption applies, it will result in shifting the cost of the pandemic, in terms of medical expenses and lost wages, onto employers and their workers’ compensation carriers.

While it is easy to empathize with individuals affected by Covid-19, many businesses across the country continue to struggle in their own right, and through no fault of their own. It is reasonable to ask if they should ultimately bear the cost of this pandemic.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jonathan P. Spadea is an attorney at Chartwell Law where he focuses his practice on the representation of clients in workers’ compensation, medical fee review, and employment law matters in Pennsylvania and New Jersey.