Legislature(2021 - 2022)BARNES 124
03/05/2021 03:15 PM LABOR & COMMERCE
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HB 45-WORKERS' COMP. AND CONTAGIOUS DISEASES 3:37:28 PM CO-CHAIR SPOHNHOLZ announced that the next order of business would be HOUSE BILL NO. 45, "An Act relating to presumption of compensability for workers' compensation claims related to contagious diseases; and providing for an effective date." [HB 45 was held for discussion later in the meeting.] HB 45-WORKERS' COMP. AND CONTAGIOUS DISEASES 3:59:47 PM CO-CHAIR SPOHNHOLZ announced that the next order of business would be a return to HOUSE BILL NO. 45, "An Act relating to presumption of compensability for workers' compensation claims related to contagious diseases; and providing for an effective date." 4:00:01 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, explained that the idea behind HB 45 came from seeing Michigan and Minnesota lead the nation in March and April 2020 in offering protections to first responders in the form of workers' compensation in the instance of a disaster declaration. During the thirtieth Alaska State Legislature, in 2020, the legislature passed Senate Bill 241 in late March, which stood as the emergency declaration until November 15, 2020. He stated that this bill provided support for Alaskans in a variety of ways, such as mandating a moratorium on rent. In that bill, he shared that the House adopted Amendment 5, which offered workers' compensation protection for first responders who had suffered some exposure to COVID-19. He said that municipalities are litigating what the legislature meant in that bill, and are asking for proof beyond what was intended that the exposure occurred at work. He shared that HB 45 acknowledges that there will be future pandemics and intends to show first responders and other essential workers that the government "has their backs." It creates a presumption that only exists during a time that an emergency declaration has been declared and would provide workers' compensation to individuals that contract a pandemic disease. He explained that these individuals would have to prove that the disease was contracted due to exposure at the workplace. He opined that Alaska has fortunately done "quite well" during the COVID-19 pandemic, although Alaska has tragically lost "over 100 people" and many others have gotten sick, he said that many people recover relatively quickly and so the burden imposed by the bill would not be enormous. 4:04:33 PM CHAIR SPOHNHOLZ offered clarification that Alaska has lost over 300 lives to COVID-19. 4:05:19 PM ELISE SORUM-BIRK, Staff, Representative Andy Josephson, Alaska State Legislature, on behalf of Representative Josephson, prime sponsor, offered a PowerPoint presentation entitled, "House Bill 45; Frontline Worker Presumption of Compensability," [hard copy included in the committee packet], and began on slide 2, "Background: COVID-19 and SB 241," which read as follows [original punctuation provided]: • In the spring of 2020, the Legislature came together quickly to pass SB 241, an omnibus emergency response bill. • Amended into bill on the House Floor was a workers' • compensation presumption of compensability for first • responders and medical professionals. • Amendment 5 offered by Rep. Josephson and Rep. Kopp • became section 15 Chapter 10 of Session Law This • provision expired November 15th 2020 and the Governor opted to exclude this protection from his newly declared disaster declaration leaving these individuals unprotected. MS. SORUM-BRIK moved to slide 3, "What is a 'presumption of compensability'?" and paraphrased the slide, which read as follows [original punctuation provided]: • Certain occupational groups are more likely to contract certain illnesses • It is difficult to track where certain illnesses come from or to link an illness directly to a workplace • "Presumptive compensability" law allows an assumption to be made that an illness is linked to the nature of an individual's work • Can be "rebuttable" or "non rebuttable" • If a presumption exists, an impacted employee may receive workers' compensation benefits unless their employer successfully rebuts the claim MS. SORUM-BIRK moved to slide 4, "SB 241 provision vs. HB 45," and paraphrased from the slide, which read as follows [original punctuation provided]: SB 241 • Covered: firefighters, peace officers, EMTs, paramedics, health care workers • Non rebuttable • Requires the individual to have been "exposed" at work • COVID 19 specific HB 45 • Covers groups previously included in SB 241 • Adds grocery clerks, teachers, childcare workers • Allows other similar professions to be added by DOLWD Commissioner • Rebuttable with "clear and convincing evidence" • Requires that an individual work outside the home within 2 weeks of diagnosis and have direct contact with members of the public • Applicable during all public health emergencies (declared under the Alaska Disaster Act) caused by contagious disease 4:09:12 PM MS. SORUM-BIRK advanced to slide 5, "Sectional Analysis," and paraphrased from the slide, which read as follows [original punctuation provided]: Section 1 - Establishes a presumption for frontline workers who are actively working with the public during a declared public health emergency cause by a contagious disease Subsection (a) - Outlines metric for establishing presumption Subsection (b) - Outlines how presumption may be rebutted and gives DOLWD Commissioner the authority to add more occupational groups if needed Subsection (c) - Provides definitions Section 2 - Makes coverage retroactive to Nov 15th, 2020 (date at which SB 241 provision expired) for first responders and health care workers Section 3 - Provides for an immediate effective date for newly covered occupations MS. SORUM-BIRK proceeded to slide 6, "First Responders," and explained that first responders would be addressed specifically by the bill because COVID-19 has been the biggest cause of police officer death in the past year. Firefighters were found to be 15 percent more likely to be infected by COVID-19 in New York City, she said. 4:13:13 PM MS. SORUM-BIRK proceeded to slide 7, "Health Care Workers," and explained that these workers often have the most direct-contact with COVID-19 positive patients. In Alaska, medical workers claims made up the majority of time lost claims for workers' compensation, meaning that individuals working in the medical field were being required to go home and quarantine due to exposure to COVID-19. MS. SORUM-BIRK moved to slide 8, "Teachers and Child Care Workers," and explained that although there was a belief earlier in the pandemic that children may not be as susceptible to the virus, it has now been found that children do play a role in transmission of COVID-19. She noted that the Kaiser Family Foundation did a study that found that a majority of teachers are in a high-risk category either due to age or medical condition, and may feel nervous about returning to the classroom. She stated that child care centers often employ low- wage workers and do not offer benefits, and all public health restrictions on child care facilities were lifted "pretty early" in the pandemic. MS. SORUM-BIRK proceeded to slide 9, "Grocery Store Workers," and explained that these are also often low-wage jobs and that there are studies "out there" that show that there are high infection rates among grocery store workers. MS. SORUM-BIRK advanced to slide 10, "Status of COVID-19 Presumptions in the U.S." which depicted a map of the U.S. that she explained was put together using data from the National Conference of State Legislatures (NCSL) [included in committee packets]. She noted that the blue colored states on the map are places where executive orders have been put into place; states in green are places where state legislatures have put COVID-19 presumptions in place. She said that some states have broad presumptions that would apply to all essential workers, like California, and others have narrow presumptions. 4:17:35 PM MS. SORUM-BIRK explained that there was a National Council on Compensation Insurance (NCCI) cost study [included in the committee packet] that was done and noted that she looked into what COVID-19 has looked like in the workplace in Alaska. She said that the infection rate overall in Alaska in December 2020 was 5.9 percent, and the lowest scenario analyzed in the NCCI study was 5 percent, meaning that Alaska was close to the lowest scenario. The 5.9 percent number refers to the lowest population, she noted, and DL&WD estimated by using workers' compensation claims that only 1 in 12 COVID-19 cases in Alaska in 2020 were work related. In 2020, only 3 percent of COVID-19 cases have resulted in workers' compensation claims, she continued. 4:19:17 PM CO-CHAIR SPOHNHOLZ invited questions from the committee. 4:19:29 PM REPRESENTATIVE SNYDER asked Representative Josephson about the definition of "grocery store" in AS 44.25.048, noting that the definition is fairly brief. She stated that she wants to ensure that it applies to all varieties of food retail stores in Alaska. REPRESENTATIVE JOSEPHSON responded that he had not considered whether the definition would be expansive enough to cover all of the varieties of food dispensers that exist in Alaska. 4:20:53 PM MS. SORUM-BIRK provided clarification that that is the only statutory definition that exists for grocery stores. REPRESENTATIVE SNYDER commented that she would hate to see smaller stores excluded due to an issue of interpretation. 4:21:55 PM REPRESENTATIVE MCCARTY asked Ms. Sorum-Birk if the required emergency declaration that would trigger HB 45 could apply to a portion of Alaska or would need to apply to the entire state. MS. SORUM-BIRK responded that there could be a regional or localized pandemic and the governor could declare an emergency for particular municipalities if it were related to a contagious disease. REPRESENTATIVE MCCARTY asked, if there was an outbreak of influenza, whether the employers in that community be required to pay workers' compensation benefits. MS. SORUM-BIRK responded that the governor has to have declared an emergency. She said that if there was an outbreak so severe that the governor had declared that an emergency had occurred, then it could be a possibility, but for the common cold or seasonal flu it would be unlikely for a governor to declare a disaster emergency. REPRESENTATIVE MCCARTY asked if there is a definition of "disaster emergency." MS. SORUM-BIRK responded the bill sponsor is using the disaster emergency definition found in the Alaska Disaster Act, located in AS 26.23.020(c). 4:25:12 PM CO-CHAIR SPOHNHOLZ asked Ms. Sorum-Birk if she could supply that definition to the committee. She agreed that it is unlikely that a governor would declare an emergency for the flu, but that it could potentially happen in the case of a disease like tuberculosis. 4:26:09 PM REPRESENTATIVE KAUFMAN asked Representative Josephson about the possibility of the bill requiring employers to be "proving a negative." He said he is concerned about setting a precedent and opening the employers to liability and the possibility of discrimination against employees that are already high-risk. REPRESENTATIVE JOSEPHSON responded that in around 2008, the legislature and the governor at the time passed a bill which said that firefighters and related professionals who had exposure to carcinogenic material could receive workers' compensation upon sufficient evidence that the workplace is where the exposure occurred. He opined that it is not fantastic coverage because it is a sixty-month bill and it not overly generous. The point, he said, is that there is some history for covering something that is unseen. He stated that the failure to cover these sorts of exposures may cause people to not want to enter certain professions, such as grocery store positions that pay minimum-wage. He restated that more police officers have died from COVID-19 exposure in the last year than from anything else. He said that he understands Representative Kaufman's point but does not think it would be likely to be an issue. 4:31:27 PM CO-CHAIR SPOHNHOLZ noted that it could be helpful to have Lori Wing-Heier, Director of the Division of Insurance, speak to the committee and answer questions and share her perspective. 4:32:25 PM REPRESENTATIVE MCCARTY asked for definitive numbers of workers that may have been impacted in the last year by COVID-19. MS. SORUM-BIRK responded that DOL&WD would be best suited to answer this question. She shared that the department released a thorough report [included in committee packets] detailing the number of people impacted by COVID-19. 4:33:48 PM CHARLES COLLINS, Director, Workers' Compensation Division, Department of Labor and Workforce Development (DL&WD), responded that the department has tracked claims throughout the pandemic, and as of last week there were 2,386 claims reported. He shared that just about 10 percent of claims were denied. Of the claims that were approved, the department categorized the claims by occupation. He said that he would be glad to use this information to glean any specific data the committee would like to see. REPRESENTATIVE MCCARTY responded that he would be interested in seeing numbers to see how much of an impact this bill would have. He asked how individuals who go home sick from work [from a common sickness] are differentiated from individuals who have to go to the hospital. MR. COLLINS responded that of the claims the department received this year, only 694 of the claims were paid some type of benefit. In situations where there may have been exposure, Alaska employers might shut down business and send every employee to be tested, which could result in a high number of claims, but he shared that most of those situations resulted in a "zero bill." He explained that that is why there were 2,386 claims but only 694 claims that were paid. He shared that even so, this number is quite high, and resulted in a payout of $850,000 in benefits. The majority of this cost comes from cases where medical transfers were necessary, he said, particularly if the individual requiring care was in a remote location. 4:38:11 PM CO-CHAIR SPOHNHOLZ announced that HB 45 was held over.