Utah was among the first legislative reactions to COVID-19. House Bill (HB) 3007 was filed on April 14, 2020, and was sent to the Governor on April 22, 2020. He signed the bill the same day. Imagine, in the infancy of COVID, from filing to law in 8 days. That legislature returned recently to amend the new law. It may be an interesting study of legislative drafting as well as the process of incorporating definitions composed by others.
The new law in April defined COVID-19: "the disease caused by severe acute respiratory syndrome coronavirus 2." It brought clarity to "diagnosed" requiring (a) "laboratory testing of a specimen the individual provides, tests positive for the virus that causes COVID-19"; and (b) is "diagnosed with COVID-19 by a physician." HB 3007 created a presumption of workers' compensation causality if the "first responder is diagnosed with COVID-19" either "while employed or serving as a first responder," or within two weeks following the termination of such service.
But, the challenge with many legislative efforts is in the details. The new law in April defined what a "first responder" is by reference to two federal statutes: "emergency responder" or "health care provider" as defined in "29 C.F.R. Part 826, Subpart C." It is likely that the reference was intended to be to 29 C.F.R. 826.30(C), which does provide definitions for those; the loose citation in the original bill is challenging, but not insurmountable. The citation included in the bill is not, however, as clear as it might have been. Those sections provide:
29 C.F.R. 826.30(C)(1)(i) "a health care provider is anyone employed at any doctor's office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity."
29 C.F.R. 826.30(C)(1)(i) "an emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility"
29 C.F.R. 826.30(C)(1)(i) "an emergency responder" "also includes any individual whom the highest official of a State or territory, including the District of Columbia, determines is an emergency responder."
There are some who might see these definitions as broad. The legislature returned however in a special session in mid-June. Revisions were passed in HB 5006, which included more concise definition of "first responder":
(i) a first responder as defined in Section 34A-2-102, which includes:
(i) a law enforcement officer, as defined in Section 53-13-103;
(ii) an emergency medical technician, as defined in Section 26-8c-102;
(iii) an advanced emergency medical technician, as defined in Section 26-8c-102;
(iv) a paramedic, as defined in Section 26-8c-102;
(v) a firefighter, as defined in Section 34A-3-113;
(vi) a dispatcher, as defined in Section 53-6-102; or
(vii) a correctional officer, as defined in Section 53-13-104.
And:
(ii) an individual employed by:
(A) a health care facility as defined in Section 26-21-2;
(B) an office of a physician, chiropractor, or dentist;
(C) a nursing home;
(D) a retirement facility;
(E) a home health care provider;
(F) a pharmacy;
(G) a facility that performs laboratory or medical testing on human specimens; or
(H) an entity similar to the entities listed in Subsections (1)(b)(ii)(A) through (G); (similar to those listed here).
(iii) an individual employed by, working with, or working at the direction of a local health department; or
(iv) a volunteer, as defined in Section 67-20-2, providing services to a local health department in accordance with Title 67, Chapter 20, Volunteer Government Workers Act.
The original bill centered upon categorizations defined by the federal government, and was seen as reasonably broad in its approach. The definitions adopted more recently are arguably broader still. The effect of many of the COVID-19 presumptions that have been adopted is to create classes of employees in America. Some occupations are provided special dispensation, while others are not. This is true with each of the various presumptions that have become commonplace including heart/lung, cancer, PTSD, and now COVID-19. These laws and similar COVID-19 executive decrees enhance the rights of some workers, leaving others behind.
The scope is limited to "exposure arising out of and in the course of a first responder's employment or service." The time frame is limited to "after March 21, 2020, and before June 1, 2021." A curious element of both the original and revised laws is the absence of an activity requirement. Employment is seemingly sufficient. A sanitation worker who works cleaning a retirement facility, drug store (pharmacy), or dentist's office is a first responder and entitled to the Utah presumption. The same worker, if cleaning a group home, grocery store, or orthodontist's office is seemingly not entitled to the presumption. Of course that changes if any in the second group are "an entity similar" to the enumerated ones. Might that present some factual questions for a trial judge or two? Is "similar" an open door to additional presumption? If so, how wide open is it?
It is perhaps important that an "exposure" is required. For the disease and its sequela to be compensable, there must be an "exposure." In that regard, if a "first responder" (the bookkeeper at a chiropractic practice) is diagnosed with COVID-19 she/he must demonstrate that there was some exposure (an office visitor that had the disease?) It does not appear that the presumption arises on the solitary proofs of "I am a first responder" and "I have been diagnosed with COVID-19." Thus, a challenge seemingly remains as regards contact tracing. In whose presence was the bookkeeper? What surface in the chiropractor's office did the bookkeeper touch and who else touched that to precipitate an "exposure?"
Must the Bookkeeper be present in the Chiropractor's office; what if he telecommutes and nonetheless contracts COVID-19? He or she is nonetheless "employed by . . . the office of . . . a chiropractor." Might pharmacies, physician's offices, hospitals, and "similar" have workers that either telecommute or work in separate facilities that are office environments no different than some insurance company, financial institution, law office, or accounting firm? Is there logic in a web designer for a hospital chain working in its headquarters being treated differently than a web designer performing the same work in the headquarters of a retail clothing store chain? Or, are the web designers "similar?"
When we begin to separate people into categories, we will face challenges. There will be facts, distinctions, arguments, and perhaps litigation. The Utah law illustrates an effort to smooth that with the "an entity similar to" language. But, there remain a variety of questions that might be raised in the presentation of a workers' compensation case. Perhaps the law will diminish litigation or dispute as to some "first" and "emergency" responders. Perhaps it will leave questions regarding other workers for later resolution through claims, defenses, and adjudications.
