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March 12, 2021

Legislators propose sweeping changes to workers’ compensation system to help COVID-19 patients

Photo | Contributed State Sen. Julie Kushner, D-Danbury in the Senate Chamber on the opening day of the 2019 legislative session.
By Keith M. Phaneuf, CT Mirror

Lisa Marquis caught COVID-19 last November and has been unable to return to her job as a nursing home aide since then.

And as the clock ticks on her health benefits, and her financial stability, Marquis and many others are watching as Connecticut lawmakers grapple with the ultimate balancing test.

Do they leave the burden of compensating thousands of workers who potentially contracted COVID-19 through their jobs to the workers’ compensation system — and risk crippling numerous businesses in the process?

Do they leave Marquis and many other essential workers like her to fend for themselves?

Or is there any other financial solution where the state and federal governments play a role?

People across Connecticut spent last summer and fall thanking health care workers, grocery store staff and other essential workers who risked their health to keep others safe and fed, said Sen. Julie Kushner, D-Danbury.

“But when it comes down to it, we have to make sure that that ‘thank you’ and that appreciation is not just words and empty phrases and smiles,” she said. “It really has to translate into economic support.”

Kushner and Rep. Robyn Porter, D-New Haven, co-chairs of the Labor and Public Employees Committee, have raised two bills that would establish a fundamental assumption: that if someone could not work from home for up to two weeks before they caught COVID-19, they contracted it while on the job.

Gov. Ned Lamont established a similar assumption by executive order last spring, but that expired back on May 20.

The proposed bills would establish an assumption retroactive to March 10, 2020, when Lamont first declared a public health emergency. They also would increase the maximum death benefit in the workers’ compensation system — which hasn’t changed since 1987 — from $4,000 to $20,000. It also would set penalties for employers found to have tried to dissuade employees from filing workers’ compensation claims.

Employers still would have the right to rebut this foundational assumption, but without it, advocates say, too many employees who couldn’t work from home would see their assistance blocked as they struggle to prove precisely where they came into contact with a highly contagious, microscopic virus.

“We need to be believed,” said Marquis during a press conference organized by labor groups prior to Thursday’s committee hearing on the bills. Marquis said she caught the coronavirus while working as an aide at a Killingly nursing home.

“To this day, I struggle to breathe by myself, sinking deeper and deeper into financial crisis,” Marquis added.

Connecticut AFL-CIO President Sal Luciano said his organization believes there are thousands of workers who couldn’t do their jobs from home over the past year since Lamont declared a public health emergency.

“This is the least we can do for them,” Porter said. “We don’t call them essential workers and then treat them like sacrificial lambs.”

But business and insurance representatives and others said it’s not that simple.

Workers’ compensation is a no-fault system designed to minimize worker lawsuits against companies for on-the-job injuries. Employers must replace lost wages and cover medical costs in exchange for workers not always being able to sue.

But that doesn’t mean employers created unsafe work situations during the pandemic. For example, critics said, any health care provider working in a hospital or nursing home during a pandemic likely would be exposed to the virus.

“This would be a dangerous precedent to set and would result in unsustainable costs that will undercut the financial viability of the workers’ compensation program,” John D. Blair, associated counsel for the Connecticut Business and Industry Association, testified Thursday.

The Connecticut Hospital Association wrote in its testimony that “hospitals endured unexpected and significant decreases in revenue, exacerbated by unprecedented and unanticipated increases in the cost of providing care during the pandemic. This is no time to impose new costs on hospitals.”

And Kristina Baldwin, vice president of the American Property Casualty Insurance Association, warned the proposed bills were far broader in scope than proponents realized and would add millions of dollars in new costs to businesses amid a fragile economy.

For example, Baldwin said, under the legislation as proposed, anyone working from home — but using company equipment such as a laptop computer — still could make a claim that they contracted COVID-19 through their job and benefit from that foundational assumption.

Baldwin also noted that the legislation calls for this assumption to continue as long as the state of public emergency exists. But at the same time, the Lamont administration is in the midst of easing business and other restrictions to allow more and larger public gatherings as infection rates drop.

“While the presumption may have been somewhat defensible in the very early stages of the pandemic, when citizens were staying in place at home, it is impossible to justify creating a presumption that applies to all employees and under the current social context now that Connecticut and the rest of the country is returning more to normal social operations,” Baldwin testified.

So who should bear the cost?

“In that this is a once-in-a-century global pandemic, we believe that this unique and catastrophic event should be handled as such by the state,” said Mag Morelli, president of LeadingAge Connecticut, one of the state’s largest coalitions of nursing homes, who warned the pandemic already has pushed her industry to the financial brink.

New legislation signed Thursday by President Joe Biden would channel approximately $4.2 billion to Connecticut. That includes about $2.7 billion over which state officials would have considerable discretion about its use. The remainder would be sent to municipalities, school districts and other regional entities to help cover pandemic-related costs and provide general relief.

Kushner agreed that state officials also should consider dedicating a portion of the new federal pandemic relief aid headed Connecticut’s way to cover some of these costs as well.

And she said proponents of the bill never intended for employees working from home with company equipment to receive special protections, and that loophole would be closed.

But Kushner added the workers’ compensation system is the chief protection Connecticut has for employees injured because of work, and that must play a major role in shielding those who became sick — especially those who kept vital services available during a crisis.

“We have no other system,” she said.

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