New COVID-19 Presumptions in Virginia: How Do They Change the Law? Are Those Changes Constitutional?

The Virginia General Assembly recently enacted several statutory changes that affect how COVID-19 claims are treated by the Virginia Workers’ Compensation Commission. Prior to these changes, the claimant bore the burden of proving that COVID-19 was either an occupational disease or compensable ordinary disease of life under Va. Code §§ 65.2-400 and 401.

Two COVID presumption bills were passed this year: a presumption for health care providers (HB1875) and a presumption for firefighters/law enforcement/emergency services personnel (SB1375, which incorporates SB1342 and HB2207) (the “emergency personnel presumption”). The health care providers presumption, HB1875, has already been enacted in Acts of Assembly Chapter 507. The Governor made amendments to the emergency personnel presumption bill, SB1375, and the bill (with amendments) was approved at the reconvened General Assembly session. The amended version of SB1375 was enacted in Acts of Assembly Chapter 526. This Chapter has not been published yet, so it is unclear how both bills will be numbered when they are incorporated into the statute, as both amend Va. Code § 65.2-402.1(B), (E)(2), and (F)(2).

The bills have similar language and provide similar presumptions, but there is a key difference with respect to the dates to which the bill will apply. As will be discussed in more detail below, the health care provider presumption applies to employees who test positive for COVID-19 between March 12, 2020 and December 31, 2021, while the emergency personnel presumption applies to employees who test positive for COVID-19 between July 1, 2020 and December 31, 2021.

The new presumption statutes will come into effect on July 1, 2021. As will discussed at the end of this analysis, we intend to argue that the retroactive portions of the presumptions (that is, the portions of the presumptions affecting employees who contracted COVID-19 prior to July 1, 2021) are unconstitutional.

Presumption for “Health Care Providers”
The new health care providers presumption from HB1875 is contained in Va. Code § 65.2-402.1(B), (E)(2), and (F)(2). It will become effective on July 1, 2021, but it applies to employees who contracted COVID-19 between March 12, 2020 and December 31, 2021.

The statutory changes create a presumption for health care providers who treat COVID-19 patients and subsequently contract COVID-19. The presumption applies to “any health care provider…who as part of the provider’s employment is directly involved in diagnosing or treating persons known or suspected to have COVID-19”. For purposes of the presumption, a “health care provider” includes most medical professionals. A complete list of the persons considered “health care providers” can be found in Va. Code § 8.01-581.1.

To be entitled to the presumption, the employee must prove several other things. First, the employee must have had disability or death from COVID-19 occurring between March 12, 2020 and December 31, 2021. Second, the employee must meet one of two factors. The language in the factors is somewhat cumbersome:
a. Prior to July 1, 2020, the claimant received a positive diagnosis of COVID-19 from a licensed physician, nurse practitioner, or physician assistant after either (i) a presumptive positive test or a laboratory-confirmed test for COVID-19 and presenting with signs and symptoms of COVID-19 that required medical treatment, or (ii) presenting with signs and symptoms of COVID-19 that required medical treatment absent a presumptive positive test or a laboratory-confirmed test for COVID-19; or
b. On or after July 1, 2020, and prior to December 31, 2021, the claimant received a positive diagnosis of COVID-19 from a licensed physician, nurse practitioner, or physician assistant after a presumptive positive test or a laboratory-confirmed test for COVID-19 and presented with signs and symptoms of COVID-19 that required medical treatment.

In other words, if the employee began showing COVID-19 symptoms and required medical treatment between March 12, 2020 and June 30, 2020, the employee can still get the presumption even if the employee did not receive a positive COVID-19 test. If the employee has COVID-19 symptoms between July 1, 2020 and December 31, 2021, the employee must have a positive COVID-19 test to receive the presumption.

If the employee meets the above criteria, the Workers’ Compensation Commission will presume that the COVID-19 was an occupational disease, making the claim compensable. The employer will then bear the burden of overcoming this presumption by a preponderance of evidence to the contrary.

There is one exception to the presumption. If the employee is offered a COVID-19 vaccine by his or her employer, and refuses it, the employee cannot receive the presumption if the employee contracts COVID-19 after this. The idea is that a person who fails or refuses to get vaccinated when a vaccine is offered should not benefit from the presumption. This exception does not apply, however, if the employee refuses the vaccine because the employee “is immunized” or the employee’s “physician determines in writing that the immunization would pose a significant risk to the person’s health.”

Presumptions for Emergency Personnel (Firefighters/Police/Law Enforcement)
The new emergency personnel presumption will come into effect on July 1, 2021, but it applies to employees who contracted COVID-19 between July 1, 2020 and December 31, 2021.
The statutory changes create a presumption for firefighters, law-enforcement officers, correctional officers, and regional jail officers who test positive for COVID-19. To specifically identify occupations that fit within these categories, the statute references separate code sections providing definitions for firefighters, law-enforcement officers, and correctional officers, but it does not provide a separate definition for regional jail officers.

To be entitled to the presumption, the employee must prove two things. First, the employee must have died or suffered disability between July 1, 2020 and December 31, 2021. This is a smaller date range than the health care providers presumption, which applies between March 12, 2020 and December 31, 2021. Second, the employee must prove that he or she received a COVID-19 diagnosis from a licensed physician after either a “presumptive positive test” for COVID-19 or a “laboratory confirmed test for COVID-19” and presented with signs and symptoms of COVID-19 that required medical treatment. Unlike the presumption for health care providers, the presumption for emergency personnel requires a positive COVID-19 test regardless of the date that the employee was diagnosed with COVID-19. Additionally, under the health care provider presumption it is sufficient for the employee to receive the COVID-19 diagnosis from a licensed physician, nurse practitioner, or physician’s assistant, but for emergency personnel the diagnosis must come from a licensed physician.

If the employee meets the above criteria, the Workers’ Compensation Commission will presume that the COVID-19 was an occupational disease suffered in the line of duty, making the claim compensable. The employer will then bear the burden of overcoming this presumption by a preponderance of evidence to the contrary. Unlike the health care provider presumption, there is no exception for emergency personnel who refuse a COVID-19 vaccine offered by the employer.

The Retroactive Presumptions May be Unconstitutional
Both presumption bills create retroactive changes to the law because both apply a presumption to employees who contracted COVID-19 prior to the bill coming into effect on July 1, 2021. For the health care provider presumption, the retroactive period runs from March 12, 2020 to June 30, 2021, and for emergency personnel the retroactive period is from July 1, 2020 to June 30, 2021.

While we do not know how Virginia courts would construe the new bills discussed above, we intend to argue that the retroactive presumptions are unconstitutional because they affect substantive rights, namely the duty and obligation of employers to provide benefits under the Workers’ Compensation Act for employees who establish entitlement under Va. Code §§ 65.2-400 and 401 et seq. and the employee’s right to receive benefits if the employee meets the presumption.

Unless otherwise specified, statutes in Virginia are presumed to apply prospectively (i.e., from the date of enactment forward) rather than retrospectively. Shiflet v. Eller, 228 Va. 115, 119 (1984). The legislature may enact retroactive statutes, but only where the statute does not affect vested or substantial rights. Ferguson v. Ferguson, 169 Va. 77, 86-87 (1937). A vested right is “a right, so fixed that it is not dependent on any future act, contingency or decision to make it more secure.” Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37, 45 (1924). “Substantive rights, which are not necessarily synonymous with vested rights, are included within that part of the law dealing with creation of duties, rights, and obligations, as opposed to procedural or remedial law, which prescribes methods of obtaining redress or enforcement of rights.” Shiflet, 228 Va. at 120.

Here, these new presumptions do not merely change the procedure by which a claimant brings a claim or change a remedy available. Instead, they modify the substantive right of the claimant to occupational disease benefits and the duty of the employer to provide such benefits. Thus, we believe that they constitute changes to substantive rights. If the prior statutory duties surrounding occupational diseases and ordinary disease of life are substantive rights, then the legislature cannot enact legislation that retroactively affects these rights. Both bills apply the presumption retroactively, although for varying periods of time. Thus, we intend to argue that the retroactive portions of each bill are unconstitutional.

With regard to the Workers’ Compensation Commission, Article IV § 14 of the Virginia Constitution provides that “[t]he General Assembly shall not enact any…special…law in the following cases: … (3) Regulating the practice in, or the jurisdiction of, or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals…” “A law is ‘special’ in a constitutional sense when by force of an inherent limitation it arbitrarily separates some persons, places or things from those upon which, but for such separation, it would operate.” County Board of Sup’rs v. American Trailer Co., 193 Va. 72, 79 (1951).

The Virginia Supreme Court previously found that a law creating a retroactive presumption for an occupational disease was unconstitutional under this section in Commonwealth, Dep’t of State Police v. Hines, 221 Va. 626 (1980). Hines involved a 1977 bill that created a presumption that hypertension suffered by policemen was an occupational disease, but excluded certain police officers. The bill applied retroactively to policer officers who were disabled on or after January 1, 1974, three years before the 1977 amendment was enacted. The Department of State Police challenged the retroactive application of the presumption, arguing that the retroactive portion of the bill was a special law and therefore unconstitutional. The Supreme Court found that the retroactive portion of the statute was a “special” law because it applied to some police officers but not others, thereby arbitrarily separating out some persons. Thus, the Court ruled that the retroactive portion of the statute was unconstitutional under Article IV § 14. A similar argument can be made here, in that the retroactive portions of both presumptions apply to certain health care providers and certain emergency personnel, but not to others.

Since these statues are new and do not become effective until July 1, 2021, there is not yet any case law addressing the statutes or the constitutional concerns. The issues outlined above will continue to progress as the statutes become effective, and we will keep you updated as new cases and developments appear.