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Friday, January 29, 2021

Florida lawmaker looks to beef up COVID-19 employee protections statewide

Posted By on Fri, Jan 29, 2021 at 10:58 AM

  • Photo courtesy Sen. Perry Thurston/Facebook
  • Sen. Perry Thurston
As the Republican-led Legislature moves quickly to provide broad COVID-19 liability limits for businesses, some lawmakers say additional protections should be provided for “essential” and front-line employees showing up for work.

Members of House and Senate panels have expressed concerns that workers who allege they contracted COVID-19 on the job aren’t getting workers’ compensation benefits.

A state report shows that 29,400 coronavirus-related workers’ compensation claims were filed as of Dec. 31, including 13,409 claims filed by health care workers and educators. Forty-three percent of the overall claims had been denied payment, according to the monthly report, published by state Chief Financial Officer Jimmy Patronis’ office. Nearly 46 percent of claims filed by health care workers and educators had been denied.

Claims related to COVID-19 accounted for 31 percent of the 93,228 workers’ compensation claims filed in 2020. But payments on those claims accounted for less than 8 percent of the $727,329,103 workers' compensation payments last year.

The statistics are troubling for Senate Judiciary Committee member Perry Thurston, who offered a proposed amendment this week to a high-profile bill (SB 72) that would provide COVID-19 liability protections for businesses.

The amendment, which did not get added to the bill, would have changed workers’ compensation law to include a presumption that a wide range of health-care professionals who test positive for COVID-19 contracted it at work. The amendment would have applied to physicians, nurses, dentists, emergency medical personnel and people who work at clinical labs, doctors’ offices, hospitals and nursing homes.

“The people we are trying to protect, they deserve this protection. They deserve to know that if they are putting their life on the line and care for people, that if something should happen, at least the workers’ comp benefit is there for them,” Thurston, a Fort Lauderdale Democrat and attorney, told the News Service of Florida. “And if you think about it, what is workers’ comp? It is designed to be self-executing, meaning that we don’t have to argue this thing. Give them that protection. I think it’s the basic minimum.”

Some workers already have the protections Thurston is pushing for.

Patronis last year issued an order making clear that a presumption exists that certain front-line state employees who test positive for COVID-19 got infected while working. Patronis told the News Service in December that, through the order, he was able to secure workers’ compensation coverage for state employees who “didn’t have that peace of mind before.”

As of Dec. 31, 6,155 state employees across 13 agencies and departments and six state universities had filed workers’ compensation claims.

During a Senate Judiciary Committee meeting this week, Thurston pressed Patronis, a Republican, on why state employees have added workers’ compensation protections but employees who work in non-government jobs do not.

Patronis, a former lawmaker, avoided directly answering the question.

“I know my role in this place, and that is not to cross a senator,” Patronis said.

Bill Herrle, executive director of the National Federation of Independent Business Florida, said it’s insurers, not employers, that determine whether workers’ compensation claims lead to payments. Herrle acknowledged that decisions about whether claims are compensable appear to be “all over the place.”

“Inconsistency in the workers’ compensation system isn’t good, and that probably needs to be resolved,” Herrle said. “However, we are not ready to concede that COVID categorically is a workers’ compensation-compensable claim.”

Herrle said, though, that his small-business group is open to looking at workers’ compensation issues, but not until after the Legislature passes lawsuit limitations for businesses.

Workers' compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries. While the system is supposed to be self-executing, injured workers hire attorneys when there are disputes over the amounts of benefits — medical or lost wages — they should receive.

Florida's workers’ compensation laws provide coverage for “occupational diseases” that are characteristic of particular trades or jobs. The term excludes “all ordinary diseases of life to which the general public is exposed,” unless the incidences of diseases are substantially higher in particular professions.

At the behest of Patronis, Florida Insurance Commissioner David Altmaier last year issued a memo advising insurance companies that first responders and health-care workers who contract COVID-19 “due to work-related exposure” would be eligible for workers’ compensation benefits.

“Insurers licensed to provide workers’ compensation coverage in Florida are reminded of this statutory requirement, which must be applied on a non-discriminatory basis,” Altmaier's memo said. “The OIR expects workers’ compensation insurers to comply with all of the provisions of Florida’s Workers’ Compensation Law and will take appropriate action in the event of noncompliance.”

According to the National Council on Compensation Insurance, 22 states have considered legislation to establish workers’ compensation presumptions of compensability for COVID-19 for certain employees. Ultimately, nine states passed laws: Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin and Wyoming.

Thurston isn’t alone in his worries about workers with COVID-19 having access to benefits. Members of the House Civil Justice and Property Rights Subcommittee also expressed concerns that not enough is being done for workers.

After he proposed the amendment this week, Thurston said he heard from representatives of the hospital and nursing home industries, among others, who expressed concerns. He agreed to withdraw the amendment but said he will revisit the issue and work closely with House Democrats to try to make the change.

“It’s easy to say we want to protect first responders, they are out there on the front line protecting us so we should protect them,” Thurston said. “Maybe the Legislature should put some kind of moratorium on workers’ compensation carriers that you can’t just increase insurance. Everyone should have some skin in the game. From first responders to doctors to nurses. The people out there protecting us, they have lots of skin in the game."

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