On September 28, 2020, Speaker Pelosi released the summary of the Updated Version of the HEROES Act for consideration in response to the Coronavirus and as an economic stimulus. The proposal would create new employer reporting requirements with respect to health and safety and create new workers’ compensation presumptions related to COVID-19 (See section by section summary)
Provisions of particular interest for Workers’ Compensation include:
Sec. 202. Emergency Temporary and Permanent Standards.–Requires OSHA to issue an emergency temporary standard (ETS) within 7 days of enactment to protect health care and other workers at occupational risk of exposure to COVID-19. The ETS:
- Requires employers to conduct a hazard assessment and develop and implement a comprehensive infectious disease exposure control plan to protect workers from exposure to the SARS-CoV-2 virus that causes COVID-19.
- Requires employers to implement appropriate controls, provide worker training and report outbreaks to OSHA and public health authorities
- Incorporates, as appropriate, guidance issued by the Centers for Disease Control and Prevention, the National Institute for Occupational Safety and Health, and OSHA which are designed to prevent the transmission of infectious agents in healthcare settings and relevant scientific research on novel pathogens.
- Requires the ETS to be no less protective than the infectious disease precautions for novel pathogens issued by any OSHA state plan.
- Permits OSHA to exercise enforcement discretion in the event of shortages of respirators or other personal protective equipment.
- Requires OSHA state plan states to adopt an ETS within 14 days of enactment.
- Covers public employees in the 24 states where they are not currently covered by OSHA.
- Requires OSHA to issue a permanent infectious disease standard within 24 months of enactment.
- Prohibits employers from retaliating against workers for reporting or publicizing health and safety hazards, or for using their own more protective personal protective equipment if not provided by the employer.
Sec. 203. Reporting, Tracking, Investigation and Surveillance of COVID–19 Infections and Outbreaks.
- Requires the CDC, in conjunction with the National Institute for Occupational Safety and Health, to collect and, as appropriate, investigate reports of work-related transmission of COVID-19 to health care and other workers, and make recommendations on needed actions or guidance based on those reports and investigations.
Provisions creating new presumptions for Longshore and FECA include:
Title III – COVID-19 Protections under the Longshore and Harbor Workers’ Compensation Act
Sec. 301. Compensation Pursuant to the Longshore and Harbor Workers’ Compensation Act (LHWCA).—Establishes a presumption that COVID-19 is work related and authorizes eligibility for benefits under the LHWCA to those maritime employees who were employed between January 27, 2020 and January 27, 2022 who are diagnosed with COVID-19, or who were ordered not to return to work by the employer or by a public health agency because of exposure or risk of exposure in the workplace to one or more individuals diagnosed with COVID- 19.
- An employer or carrier is entitled to reimbursement for the costs of compensation paid for COVID-19 claims from the Special Fund established under the LHWCA Section 44, provided such employer is in compliance with requirements and guidance related to the prevention of exposure to the novel coronavirus that causes COVID-19 issued by the Occupational Safety and Health Administration, Centers for Disease Control, the U.S. Coast Guard, or state or local health authority related. Insurance premiums and experience ratings cannot be adjusted based upon compensation paid by the carrier, if the carrier is reimbursed for the costs of claim from the Special Fund for purposes of this Title. Claims for reimbursement shall be submitted to the Department of Labor pursuant to regulations established under the War Hazards Compensation Act.
- Funds are appropriated to the Special Fund.
- DOL shall report to Congress on claims paid, claims denied and claims pending, and expenditures from the Special Fund related to COVID-19 claims under this Title.
Title IV –Workers’ Compensation Benefits for Federal and Postal Employees Diagnosed with COVID-19
Sec. 401. Presumption of Eligibility for Workers’ Compensation Benefits for Federal Employees Diagnosed with COVID–19.–Provides a presumption of eligibility for benefits under the Federal Employees’ Compensation Act for a federal or postal employee who is diagnosed with COVID–19 between January 27, 2020 and January 3, 2022 (including disability compensation, medical services, and survivor benefits) and who carried out duties requiring contact with patients, members of the public, or co-workers, or whose duties include a risk of exposure to the coronavirus. Such presumption does not accrue to any employee who is teleworking on a full-time basis prior to such diagnosis
This most recent updated proposal is likely to be used in the continuing negotiations with the Senate and the White House in determining the shape of additional stimulus and assistance to individuals in recovery from the COVID recession into 2021.
UWC previously opposed federal legislation that would establish a COVID-19 related presumption under the Longshore Act.
