Due to the risk of COVID-19 exposure at the workplace, many states have enacted legislation to include the contraction of COVID-19 as a compensable workers’ compensation “occupational disease.” Just what is an “occupational disease,” how does it differ from other types of workplace injuries, and what do employers need to know about this development?
House Bill 2 (“HB2”) was signed into law by Governor Matt Bevin and became effective in July 2018. Through HB2, the legislature enacted significant changes to multiple provisions of the Workers’ Compensation Act. One of the most significant changes in the statute is the portion related to injuries resulting from illegal, non-prescribed substances or prescribed substances in excess of prescribed amounts. Previously, if an employee underwent a drug test after an injury, the employer had to prove that the use of non-prescribed substances (illegal drugs or alcohol) was the proximate cause of the injury. The new workers’ compensation law shifts the burden of proof to the injured worker to prove such illegal substances or prescribed substances was not the proximate cause of the injury. This is a significant difference because the illegal or prescribed substance is now presumed to be the cause of the injury until rebutted by the employee.