Months ago, the SC House of Representatives introduced a SC workers’ compensation COVID-19 bill that has not yet been passed into law. Months later, the bill is still “in committee” – it has yet to be passed by the House, much less sent to the Senate or signed by the governor.
Although the proposed bill does not go far enough to protect workers who contract COVID-19, SC needs to do something to ensure workers who are exposed on the job receive workers’ compensation.
Without legislation that addresses the problem, employers and insurance companies will attempt to deny all COVID-19 claims, forcing workers to prove that they contracted COVID-19 on the job – something that will be difficult if not impossible for many workers.
Who would the SC workers’ compensation COVID-19 bill cover? Who would be left out, and what would workers not covered by the bill need to do if they contract COVID-19?
Who Would the SC Workers’ Compensation COVID-19 Bill Cover?
As it is currently written, the SC workers’ compensation COVID-19 bill would cover first responders, health care providers, and correctional officers.
First responders include:
- Law enforcement officers;
- Paramedics; and
- National Guard members if called to active duty in response to COVID-19:
(1)(a) ‘First responder’ means a law enforcement officer, firefighter, emergency medical technician, or paramedic, as well as a volunteer law enforcement officer, firefighter, emergency medical technician, or paramedic.
(b) ‘First responder’ also means a member of the South Carolina National Guard or the South Carolina State Guard who has been ordered to state duty or state active duty by proper state authority in response to a:
(i) declared state of emergency for all or part of the State; or
(ii) public health emergency as defined in Chapter 4, Title 44.
Health Care Providers
Health Care Provider “means a person employed to provide ‘health service’, as defined in Section 44-7-130(11):”
(11) “Health service” means clinically related, diagnostic, treatment, or rehabilitative services and includes alcohol, drug abuse, and mental health services for which specific standards or criteria are prescribed in the State Health Plan.
More specifically, health care providers include “employees of organizations defined in Section 44-7-130(2), (7), (10), and (12):”
(2) “Ambulatory surgical facility” means a facility organized and administered for the purpose of performing surgical procedures for which patients are scheduled to arrive, receive surgery, and be discharged on the same day. The owner or operator makes the facility available to other providers who comprise an organized professional staff.
(7) “Day-care facility for adults” means a facility for adults eighteen years or older which offers in a group setting a program of individual and group activities and therapies. The program is directed toward providing community-based care for those in need of a supportive setting for less than twenty-four hours a day, thereby preventing unnecessary institutionalization, and shall provide a minimum of four and a maximum of fourteen hours of operation a day.
(10) “Health care facility” means acute care hospitals, psychiatric hospitals, alcohol and substance abuse hospitals, nursing homes, ambulatory surgical facilities, hospice facilities, radiation therapy facilities, rehabilitation facilities, residential treatment facilities for children and adolescents, intermediate care facilities for persons with intellectual disability, narcotic treatment programs, and any other facility for which Certificate of Need review is required by federal law.
(12) “Hospital” means a facility organized and administered to provide overnight medical or surgical care or nursing care of illness, injury, or infirmity and may provide obstetrical care, and in which all diagnoses, treatment, or care is administered by or under the direction of persons currently licensed to practice medicine, surgery, or osteopathy.
Hospital may include residential treatment facilities for children and adolescents in need of mental health treatment which are physically a part of a licensed psychiatric hospital. This definition does not include facilities which are licensed by the Department of Social Services.
Correctional officer includes anyone who is “employed as a correctional officer at a ‘detention facility’, as defined in Section 24-13-80(A)(1), including correctional officers employed at the South Carolina Department of Juvenile Justice and the South Carolina Department of Mental Health.”
What Would the SC Workers’ Compensation COVID-19 Law Do?
Ordinarily, a worker would have to prove that they sustained their injury while on the job, which makes it difficult to get coverage for an illness like COVID-19. A worker would have to prove that they contracted COVID-19 while they were at work, as opposed to in the grocery store, from a family member, at a restaurant, or some other place.
Presumption of Coverage
The proposed SC workers’ compensation COVID-19 bill would create a presumption that a covered worker’s illness “arose from and in the course and scope of his employment:”
(B) Notwithstanding the provisions of this chapter, for the purposes of South Carolina Workers’ Compensation Law, a first responder, health care provider, or correctional officer who is diagnosed with COVID-19 is entitled to the presumption that the diagnosis of COVID-19 arose from and in the course and scope of his employment as a first responder, health care provider, or correctional officer.
Immediate Workers’ Compensation Benefits
Furthermore, a worker will be entitled to immediate temporary total disability benefits if they are directed to isolate due to a confirmed or suspected COVID-19 exposure or when they receive a COVID-19 diagnosis:
(C) Notwithstanding Section 42-9-260(A), a first responder, health care provider, or correctional officer is entitled to temporary total disability benefits immediately upon isolation, and lasting until isolation is no longer recommended by a physician, if he:
(1) is directed to isolate by his employer due to confirmed or suspected COVID-19 exposure;
(2) receives a COVID-19 diagnosis from a physician;
(3) receives a presumptive positive COVID-19 test; or
(4) receives a laboratory-confirmed COVID-19 test.”
What About Everyone Else?
If the bill passes, however, thousands of other essential workers in SC who are exposed to COVID-19 on the job will still be forced to prove that they contracted the virus at their workplace, forcing them into protracted litigation with insurance companies who will deny every COVID-19 claim unless the law forces them to cover it.
Who would be left out?
- Teachers – even as the number of COVID-19 cases continues to rise in SC, schools across the state may open for in-person classes in just about a month.
- Grocery store workers – although everyone acknowledges that grocery store employees are essential and on the front line, they will not be covered.
- Hotel employees – in areas like Myrtle Beach, where tourism and the hotel industry is a large chunk of the local economy, hotel employees will not be covered.
- Restaurant workers – in the absence of government shut-down, restaurant workers are forced to choose between exposing themselves to the public in one of the most dangerous environments for virus transmission or losing their jobs, yet will not be protected by the proposed bill.
- DMV employees and other state workers (including public defenders, prosecutors, and judges) who must have regular contact with the public as part of their job duties.
- Third-party vendors and independent contractors who provide cleaning and other services to hospitals and other facilities.
SC needs to pass a comprehensive bill immediately – months ago – that creates a presumption of workers’ compensation coverage for all essential workers who contract COVID-19.
Why is the SC legislature dragging its heels on this important issue?
If you have been injured at work and believe you are entitled to workers’ compensation benefits, your SC workers’ compensation attorney can help you to file your claim, negotiate with the insurance company, present your medical evidence, and file any necessary appeals.