August 5, 2020. Act 150, An Act Relating to Temporary Workers’ Compensation Amendments Related to COVID-19, became law on July 13, 2020. Also known as Vermont’s COVID-19 Presumption law, it (1) establishes who is eligible for workers’ compensation presumption and the timeframe of eligibility, (2) clarifies how the presumption applies and circumstances when the presumption does not apply, and (3) establishes effective dates and a prospective repeal date. The full text of the law is posted on the legislature's website. In this article, PACIF Loss Control staff very briefly outline some important elements of the law and clarify how municipalities can limit their exposure to COVID-19 presumption claims.
As is the case with many such laws, the presumption is not absolute, but instead has certain elements that must be met for the presumption to apply. Act 150 separates employees into front-line workers and everyone else. Front-line workers are specifically defined and have an easier path to presumption, in that they only need to have a positive COVID-19 test result. The only defense to this presumption is a preponderance of evidence that the disease was caused by non-workplace factors.
For all other employees, a positive COVID-19 test is also required, and a defense to presumption is a preponderance of evidence that indicates the disease was not work-related. One notable difference between the two employee groups is that if employers can demonstrate that they are – and were at the time of exposure – in compliance with all appropriate employee safety measures, then the presumption does not apply. Specifically, the employer must:
- between April 1, 2020 and April 20, 2020, comply with the relevant COVID-19 related guidance for businesses and workplaces issued by the U.S. Centers for Disease Control and the Vermont Department of Health and any similar guidance issued by local or municipal authorities; and
- between April 20, 2020 and January 15, 2021, comply with the Restart Vermont Work Smart and Stay Safe guidance issued by the Agency of Commerce and Community Development and any similar guidance issued by local or municipal authorities.
Some of the key Restart Vermont safety measures applicable to municipalities include:
- Posting of signage at all building entrances
- Adherence to social distancing measures of at least 6’ of separation between persons
- Performance of daily employee temperature checks and completion of symptom assessments
- Completion of employee training using VOSHA online training resource or similar information
- Installation of barriers to protect employees in public-facing, fixed workstations such as town clerk service desks
- Regular disinfection of all high-contact surfaces
- Limiting occupancy in common areas and break rooms to maintain social distancing requirements
- Comprehensive use of face masks by employees and members of the general public who enter facilities
You can review the complete list of safety requirements at the ACCD Restart Vermont webpage, though it is important to note that additional measures and protective equipment are likely necessary for some municipal first responders.
We strongly encourage all employers to fully comply with all of the safety measures that apply to the wide range of operations and tasks within their workplace. Doing so provides your employees with the best possible protection against infection. Additionally, full compliance with the ACCD Restart Guidance does provide employers with some protection against workers compensation COVID-19 claims from non-frontline workers, since the workers’ compensation presumption only applies if the employer is out of compliance.
PACIF members with questions about how to adequately protect employees or how to comply with the ACCD Restart Vermont Work Smart and Stay Safe guidance can contact their loss control consultant for assistance or email PACIF Loss Control at firstname.lastname@example.org for more information. Those with questions about workers' compensation claims, filing, or compensability can email a PACIF Workers' Compensation Claims manager at email@example.com or contact the Vermont Department of Labor Workers' Compensation division at (802) 828-2286 or firstname.lastname@example.org.