HB 45-WORKERS' COMP. AND CONTAGIOUS DISEASES  8:46:43 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." 8:47:19 PM REPRESENTATIVE ANDY JOSEPHSON, Alaska State Legislature, as prime sponsor of HB 45, provided a refresher about the bill's provisions. He stated that the bill's origins stem from the COVID crisis and Amendment 5 [on the House floor] to [Senate] Bill 241. He said the provision of [Senate] Bill 241 being spoken about here was in effect until 11/15/2020. It offered, some might say, generous incentives to first responders to report to work as they normally would, and that only in times of a disaster declaration there would be a strong presumption that if they came down with the disease, in this case SARS COVID-19, it would be covered by workers compensation. He said HB 45 is in some respects less generous than Amendment 5 in that it does allow for a rebuttable position to be taken by the employer upon clear and convincing evidence that the employee did not in fact contract the disease at work, but still there is the presumption of compensability. Also, he noted, HB 45 expands the class of workers, principally in the area of grocery store employees and teachers in childcare facilities. 8:49:22 PM ELISE SORUM-BIRK, Staff, Representative Andy Josephson, Alaska State Legislature, on behalf of Representative Josephson, sponsor of HB 45, reviewed a memorandum written on the representative's letterhead providing answers to the questions that were posed by committee members during the bill's [first hearing on 3/5/21]. Regarding the question about the definition of grocery store, she stated that it is the only statutory definition of grocery store in Alaska statute. She advised that a new, more inclusive definition could be drafted by Legislative Legal Services if the committee saw fit. Regarding Representative McCarty's question about whether an emergency could be statewide, regional, or local in nature, she said it can be any of those as per AS 26.23.020(c) of "the Disaster Act," which outlines how a governor goes about declaring a disaster emergency and that the governor must "indicate the threated or affected area". MS. SORUM-BIRK related that the sponsor was asked to supply the statutory definitions of disaster and the section for how the governor can declare disaster emergencies. She said there are separate sections in the Disaster Act, and the one referenced in HB 45 is the governor's power to declare a disaster emergency. [The Disaster Act], she continued, includes a definitions section that has several definitions of disaster. The definition in AS 26.23.900(2)(E) is an outbreak of disease or a credible threat of an imminent outbreak of disease that the commissioner of the Department of Health and Social Services, or a designee of the commissioner, [certifies to the governor]. The list of things that can be considered a disaster emergency is very long, she noted. MS. SORUM-BIRK addressed Representative Kaufman's question about whether an employer might be opened to liability by having one of its employees receive workers' compensation. The sponsor's answer, she said, is that under Alaska statute, workers' compensation files and medical records are kept confidential and are not considered public records. If something becomes an issue of litigation, those records might be released and become more public. Regarding Representative Kaufman's concern that employers might discriminate against employees in high-risk categories, she cited a publication by the Equal Employment Opportunities Commission (EEOC) that was originally published during the H1N1 pandemic of 2009 and which the EEOC updated for COVID. She informed the committee that the short answer is no but added that it is more complicated than that. Bringing attention to page 3, she explained that if something raises to a certain level of threat the employer can then ask for certain things to be revealed that weren't able to be revealed otherwise, which is why it isn't a straight no. 8:54:42 PM MS. SORUM-BIRK discussed Representative Kaufman's inquiry as to shared costs to the business communities. She drew attention to the analysis of HB 45 by the National Council on Compensation Insurance (NCCI) that modeled infection rate scenarios of 5, 15, and 25 percent, and used a mortality rate of 0.5 percent. Given Alaska's real infection rate at the end of December [2020] was about 5.9 percent and the mortality rate was 0.4 percent, she said the model for a 5 percent cost scenario is probably the most accurate for Alaska. There are different caveats, and it isn't a perfect fit into the model, she continued, but the NCCI's estimate for a 5 percent infection rate was $2 million in overall workers' compensation costs. MS. SORUM-BIRK examined the implications for paid sick leave and how that might interact with the workers' compensation system, which was another question brought up by Representative Kaufman. She related that directors Scott Jordan and Charles Collins both explained to her that since workers' compensation is designed really to be an exclusive remedy, the first money out is payment for workers' compensation. She said workers' compensation is based on 80 percent of a worker's average weekly wage when a worker is out. She noted that, interestingly, the State of Alaska calculates what the remaining 20 percent would be so that the employee is made whole. Using that 20 percent from [a state employee's] leave allows [a state employee] to stay current with benefits. She added that other employers might do it slightly differently than does the state. 8:56:53 PM CO-CHAIR SPOHNHOLZ remarked that the memorandum is very thorough in its detail and very useful. MS. SORUM-BIRK spoke to Representative McCarty's request for more details on the data, costs, and number of claims in Alaska. She said Director Collins followed up with some numbers via email, and while she wouldn't state them all, the number of COVID-related cased opened as of [3/12/21] was 2,483. 8:57:51 PM REPRESENTATIVE NELSON inquired whether HB 45 is retroactive in covering previous iterations back in December. MS. SORUM-BIRK replied that there are two effective dates, a retroactive date and an immediate date. Under the retroactive clause, she explained, anyone previously covered last spring by [Amendment 5 on the House floor to Senate Bill 241] would be covered retroactively to November 15 [2020]. She noted that this would be first responders and medical professionals who lost this incentive when the initial emergency declaration expired. For the new groups of employees, she said, there is an immediate effective date. REPRESENTATIVE NELSON observed that the sponsor's statement says, "An employer could only rebut a claim by producing clear and convincing evidence that an employee infection was not work related." He asked what the sponsor would consider to be "clear and convincing evidence." For instance, whether the sponsor would consider an example to be a Facebook post of the person partying without a mask. MS. SORUM-BIRK deferred to the sponsor to speak to evidentiary standards. REPRESENTATIVE JOSEPHSON confirmed it could indeed be something like a Facebook post. He explained that if a claim were to get very expensive, an employer may want to depose people to find out where the claimant could have contracted the disease other than the place of employment. For example, in Anchorage, patients brought to the hospital by paramedics are tested for COVID, thereby tracing it in most circumstances. According to the attorney he spoke with at the Municipality of Anchorage who is mitigating some of the other ones, they can trace it to the patient and then the assumption is made, and the claim is paid, that the paramedic delivering the patient to the hospital contracted it from the patient. There are other cases, he continued, where the narrow language in Senate Bill 241, which isn't exactly mirrored in HB 45, is being challenged and so the lawyers are battling in those cases. He deferred to Director Collins to provide further detail. REPRESENTATIVE NELSON posed a hypothetical scenario of a store worker who doesn't get infected at the store but goes home to someone who is asymptomatic and unknowingly spreading the infection. He asked whether that would technically fall under workers' compensation under HB 45. REPRESENTATIVE JOSEPHSON answered that in this scenario there is a chance that the employee would receive benefits. He said the benefits would be limited in that there must first be a declared disaster of infectious disease, and typically the extent of that disaster is going to be 30 days unless the legislature extends it. This benefit is important, but it is constrained, he said. Typically, it will not be utilized because it won't be available on the facts before (indisc. rustling of microphone). REPRESENTATIVE NELSON said that while he doesn't like to play the "what if" game, it is also good to game play to find out whether this would count for someone who isn't infected at the grocery store but rather at home. CO-CHAIR SPOHNHOLZ announced that Director Charles Collins is online and could address Representative Nelson's question about clear and convincing evidence. 9:03:13 PM CHARLES COLLINS, Director, Division of Workers' Compensation, Department of Labor and Workforce Development (DOLWD), responded that the question is somewhat complicated. He explained that if the employer decided there was a possibility the disease was contracted outside the course of normal business, the employer could controvert it and have a hearing before an industry of labor and hearing officer panel, at which the employee and the employer would bring their evidence. He said it is a very complicated question in that three people in an adjudication setting must be convinced of the merits of [the employer's] case, just as with every injury in workers' compensation where a "controversion" comes into play. REPRESENTATIVE NELSON asked whether he could talk off-line with Director Collins to get more background information. MR. COLLINS replied yes, he is always available to assist. 9:04:52 PM REPRESENTATIVE KAUFMAN inquired about how responsibility is assigned. He stated that in the previous example of emergency medical technicians (EMTs) and a COVID positive patient, the EMTs are wearing protective equipment and are in a controlled circumstance. It sounds like it would be assumed the EMTs caught it at work, he said, when they may have caught it while out at the bars the night before. He asked whether, in a situation of there being a COVID positive person where someone works, it would be assumed the worker caught it at work. REPRESENTATIVE JOSEPHSON replied that under Alaska's current workers' compensation statutes without HB 45, a person can try to make a claim that he or she contracted an infectious disease by exposure at the workplace. He said it is more challenging than it would be under HB 45 because the worker must prove that the conditions of his or her employment are substantially different from the ambient background that everyone lives in and therefore the worker is susceptible to contracting the disease at that place of employment. For example, he continued, according to documents in the committee packet presented by Ms. Sorum-Birk, it is now common knowledge that more police officers have died from COVID exposure than any other disease they've suffered from or being shot, and it is known that this is certainly true in the medical community. It is also known that personal protective equipment (PPE) and other barriers and safety precautions may be insufficient. REPRESENTATIVE JOSEPHSON continued his answer. He stated that part of this is a policy call - wanting people to go to work without fear to save [the public's] loved ones - so the bill tries to identify who are the essential workers and offer them this protection. He recalled last week's testimony by Mr. Collins that only $850,000 had been spent and noted that it has now just eclipsed $1 million based on the data provided by Ms. Sorum-Birk. However, he pointed out, this is spread over 730,000 Alaskans and, if he is remembering correctly, only 1 in 12 people who have contracted COVID in Alaska are believed to have gotten it at work. He further said that that 1 in 12 would include a librarian who would not be an essential worker, and so HB 45 limits the group. Additionally, he continued, many of the people who filed claims simply went to get a COVID test and were told they're negative, and this is a workers' compensation claim. To be really understood, he added, the numbers must be investigated and peeled back. 9:08:52 PM CO-CHAIR SPOHNHOLZ [opened public testimony on HB 45.] 9:09:14 PM JAKE METCALFE, Executive Director, Local 52, Alaska State Employees Association (ASEA), testified in support of HB 45. He noted that ASEA, Local 52, represents approximately 8,000 hard- working public employees who deliver the critical services that Alaskans rely upon every day. He pointed out that last year, essential workers, including ASEA's members, were asked to put themselves and their families at risk to keep Alaska running by ensuring critical services continued. Public employees are asked to rise above and go beyond to keep the lights on, keep the roads cleared, ensure public water is clean and safe, and that children and families in need are cared for. This year was no different, the pandemic caught everyone off-guard, he continued. Organizations across the country realized that pandemic preparedness was not in many people's rule book and the State of Alaska was no exception. As organizations and governments worked hard to respond to the novel coronavirus pandemic, the essential workers never stopped working. MR. METCALFE stated that the pandemic Alaskans stumbled through revealed numerous gaps in the safety net cast for Alaska's working people. He said HB 45 would help fill one of the holes in Alaska's safety net by providing a remedy for frontline workers and their families if they contract a pandemic disease. Several ASEA's members, especially those working in corrections and 24-hour facilities like the Pioneer Home and McLaughlin Youth Center, have personal stories they can share about their working conditions and exposures to the virus. These dedicated Alaskans, he stressed, are being asked to take major risk to keep Alaska running. He requested that legislators think about those workers and pass this important bill so that those risks are met with some relief for the worker and the worker's family. MR. METCALFE further specified that HB 45 is critical in ensuring that Alaska is taking care of the essential workers who are taking care of Alaskans. This bill, he added, is just one step that will fill a gap that became too wide and too consuming as essential workers fell ill with little to no relief. Families should not be forced to choose between their health and safety and earning a living. While HB 45 can't protect dedicated essential employees against contracting the disease, it will offer them relief they will need if they do suffer from a pandemic illness. He urged that HB 45 be passed. 9:12:45 PM CO-CHAIR SPOHNHOLZ thanked the members of ASEA who routinely work in tough conditions, especially this year given there were COVID outbreaks in several of Alaska's prisons. She noted that ASEA members also kept Pioneer Home residents safe. 9:13:07 PM CO-CHAIR SPOHNHOLZ retroactively opened public testimony. 9:13:17 PM CHARLES STEWART, Chair, Local 52 Probation and Parole Officers, Alaska State Employees Association (ASEA), testified in support of HB 45. He stated he is before the committee in support of HB 45 using his own personal experience with a contagious disease COVID. He said he tested positive for COVID at the end of December and was exposed at work. He knows this, he continued, because he was so afraid of getting COVID, given his age and health issues, that he only went to work and home every day. His girlfriend worked from home and did not leave their house for the same reasons. They ordered all their food from the grocery store and had it delivered to their home. MR. STEWART stated that all peace officers, firefighters, EMTs, and paramedics experience possible exposure to contagious diseases daily in their types of employment and working conditions, and they never know what they will walk into each day. He stated that HB 45 would support these workers and give them some peace of mind that they would not have to worry about all the other personal leave for medical reasons in case there is another health issue in the future. CO-CHAIR SPOHNHOLZ thanked Mr. Stewart for his testimony and his work. 9:15:11 PM PAUL MIRANDA, President, Alaska Professional Firefighters, testified in support of HB 45. He stated he is an engineer paramedic with the Anchorage Fire Department at Station 14 in northeast Alaska. He thanked the committee for working on this important issue and related that this issue is important to all the men and women in Alaska who serve their communities as first responders and frontline essential workers. On behalf of the 500 members of Alaska Professional Firefighters, he offered strong support for HB 45. MR. MIRANDA pointed out that firefighters and emergency medical services (EMS) personnel place themselves in harm's way when caring for patients in uncontrolled environments, such as a patient's home or the back of an ambulance. He said these professionals are not afforded the opportunity to work in a controlled environment with properly ventilated rooms and other protective measures. First responders, along with other frontline essential workers, are at much higher risk of exposure to contagious disease due to the nature of the work, and therefore are much more likely to contract certain illnesses through the course of their work than individuals in other career fields. MR. MIRANDA recounted that at the beginning of the COVID-19 pandemic many [fire] departments in Alaska struggled to obtain adequate levels of PPE to sufficiently protect their first responders, putting them at further risk of exposure to the [COVID] virus. Due to the nature of emerging infectious disease outbreaks or pandemics, he continued, there are many unknowns at the beginning until scientists have time to figure out the nature and characteristics of disease transmission. MR. MIRANDA noted that while it can be difficult to pinpoint exactly where an exposure to an illness came from, it is known that Alaska's first responders and essential workers are out on the frontlines being potentially exposed each time they go to work. He related that first responders take an oath to protect life, property, and the environment throughout their career. He said it is critical that Alaska's first responders and frontline essential workers know they are protected and that the state will have their backs so they can focus squarely on the oath they promised to keep. He reiterated that the Alaska Professional Firefighters strongly supports HB 45. He urged the committee to support the bill as well. CO-CHAIR SPOHNHOLZ thanked Mr. Miranda for his testimony and thanked the members of Alaska Professional Firefighters for their work. 9:18:01 PM REPRESENTATIVE KAUFMAN surmised the aforementioned firefighters have sick leave. MR. MIRANDA replied that's correct. REPRESENTATIVE KAUFMAN asked what the driving need is for HB 45 if someone is already covered by sick leave. MR. MIRANDA explained the notion is that if someone contracts a disease such as [COVID] through the course of their employment, the individual should not be burdened with using his or her own sick leave, if they have it. It should be covered by the employer, he continued, if the individual contracts the disease during his or her course of normal duties. REPRESENTATIVE KAUFMAN stated that a person may not want to use his or her sick leave [for COVID], but that's what it's for. He said he still isn't convinced when someone is covered by sick leave. He stated that when he has gotten sick with a typical cold or flu, most of the time he probably caught it at work. REPRESENTATIVE JOSEPHSON responded that this is a pandemic where the lucky ones are asymptomatic or only affected for 3-5 days, while others are on ventilators or at the hospital. He said the three basic things [in HB 45] are that the employee would need to use his or her sick leave, the employee would have full medical rather than be subject to deductibles and co-pays, and the employee would receive a spendable weekly wage, which doesn't often amount to much, but the employee would get something rather than no weekly wage. He further noted that for an employee who is a "long-hauler" and sick for months and months, it's meaningful to have that rather than to have a sick leave bank that is expired. 9:21:25 PM REPRESENTATIVE NELSON recalled previous statements about it being difficult to pinpoint whether the infection came from work or elsewhere. He said that is where he has a quandary. CO-CHAIR SPOHNHOLZ requested Mr. Collins to speak to the process for determining whether there is employer responsibility. MR. COLLINS explained that as with any workplace injury the employee has the responsibility of turning in his or her paperwork and the employer always has the rebuttable evidence to bring forth as to whether [the injury did happen at work]. A disease might not be quite as straight forward as a slip and fall, he continued, but there certainly is the possibility that it could be rebutted. The employer could controvert or deny the claim and the employee would then be forced to go to a hearing to prove his or her case. 9:23:22 PM REPRESENTATIVE MCCARTY recounted that while doing graduate work he drove an ambulance in Los Angeles. It was during the start of the AIDS epidemic, so he was dealing with bloodborne pathogens and fluids. But, he continued, airborne pathogens are being talked about here. He asked Mr. Miranda whether in this industry it is correct that there are always airborne pathogens. MR. MIRANDA answered that's correct. REPRESENTATIVE MCCARTY asked how Mr. Miranda and the industry differentiate whether someone's illness from airborne pathogens was acquired on the job or not. MR. MIRANDA responded that he thinks the nature of this pandemic has opened people's eyes to some of those things. [Paramedics] have personal protective equipment for respiratory protection that are now being worn in most of the departments in Anchorage during every interaction with patients. As far as differentiating previously, he said he thinks it was a little easier to trace because it wasn't in the middle of a global pandemic. When [a paramedic] took someone to the hospital with a respiratory illness, the hospital followed up, and that exposure could be easily traced to the workplace, whereas COVID- 19 is different. REPRESENTATIVE MCCARTY posed a scenario in which an employer is doing due diligence to make sure the workplace is safe, such as having masks and protective equipment. He asked at what point does it becomes an infraction or a claim to the employer. MR. COLLINS replied that that is an extremely good question for which there probably is not a definitive answer. He said firefighters already have a presumption of coverage for certain diseases under AS 23.30.121, which speaks directly to that and is a bit of a carveout. He explained that for certain carcinogenic airborne particles that may cause certain lung diseases, firefighters have a presumption that allows them greater access to workers' compensation than, say, a construction worker who burns things all day long and is exposed to the same materials but would not be covered because it is a much steeper incline for that construction worker to prove that it's a workplace injury. He stated that moving the needle of the presumption opens the gate a little bit wider to what is a workplace injury, whether it is an airborne disease, blood-based pathogen, or something else. That is a discussion for the committee to have, he said. He offered his opinion that he thinks extreme care must be taken about how wide that floodgate is opened. 9:28:31 PM MR. MIRANDA returned to the initial question asked of him by Representative Kaufman. He said Representative Josephson's answer to that question was very accurate - this is not necessarily just for those folks who might have minor symptoms and miss a couple days of work. For example, he related, one of the firefighters contracted COVID while at work at a busy station, it was well documented, it was at the beginning of the pandemic when this person responded to many COVID positive patients, and this person is having long-term significant symptoms from COVID. He said that speaks to the need for this bill specifically and these pandemic situations that can have long lasting effects on employees. 9:29:57 PM CO-CHAIR SPOHNHOLZ closed public testimony on HB 45. 9:30:10 PM REPRESENTATIVE SNYDER moved to adopt Amendment 1 to HB 45, labeled 32-LS0304\B.3, Marx, 3/13/21, which read: Page 2, following line 14: Insert a new subparagraph to read: "(I) employee of a farmer's market; (J) employee of a vendor who sells products directly to consumers at a farmer's market;" Reletter the following subparagraph accordingly. Page 2, line 17: Delete "(A) - (H)" Insert "(A) - (J)" Page 2, following line 23: Insert a new paragraph to read: "(4) "farmer's market" means a seasonal market (A) operated under the sponsorship of a community organization; and (B) the main purpose of which is to provide an opportunity for producers to sell agricultural products directly to consumers;" Renumber the following paragraphs accordingly. 9:30:19 PM REPRESENTATIVE NELSON objected for purposes of discussion. REPRESENTATIVE SNYDER explained Amendment 1 would add "employee of a farmer's market" and "employee of a vendor who sells" at a farmer's market. She said the amendment uses the Alaska Administrative Code's existing definition for farmer's markets. She stated that adding these occupations to the list originally covered in HB 45 on page 2 is in line with the rationale for including grocery store workers, which is to ensure that peace of mind is provided to those Alaskans who are essential workers making sure the public has access to food in the time of a pandemic. Farmer's markets, she noted, are an increasingly important venue for food procurement in Alaska. They were thrust into the pandemic response conversation this past year when they weren't initially included in the list of operations permitted to be open during the temporary lockdown in Anchorage. After discussions with local leadership and with food-focused stakeholder groups, the importance of farmer's markets to food access and to local economies including Alaskan farmers and food vendors was recognized and farmer's markets was added to the list of operations that should stay open. She said Amendment 1 seeks to make sure farmer's market workers delivering the same important services as grocery store workers are protected. 9:31:53 PM REPRESENTATIVE NELSON spoke to his objection. He said he knows farmer's markets are prevalent, especially in east Anchorage. He recalled earlier statements about the importance of keeping people covered for what they must do and if they have contact with COVID. But, he continued, a warning was given of not casting this net too wide. He stated that including an employee of a farmer's market and an employee of a vendor who sells at a farmer's market is too wide and he is uncomfortable with it. 9:33:04 PM REPRESENTATIVE KAUFMAN stated he is struggling with the scope and potential impacts of the bill, and Amendment 1 is a nuance of a bigger picture about which he is concerned. He said HB 45 allows to whom the bill applies to be defined in the future by a commissioner, so there is no real scope of applicability. Getting Amendment 1 in the bill would be one thing, he continued, but it wouldn't solve his concerns of greater potential in the future of how this could be defined outward. CO-CHAIR SPOHNHOLZ inquired whether Representative Kaufman is saying Amendment 1 dramatically expands the applicability in the bill. She said she is not reading the amendment that way. REPRESENTATIVE KAUFMAN replied not [Amendment 1], but the amendment doesn't address his concern. CO-CHAIR SPOHNHOLZ offered her understanding that Representative Kaufman has concerns with the underlying bill, not necessarily the amendment. REPRESENTATIVE KAUFMAN responded that the amendment doesn't go far enough in respect to his concern. 9:34:21 PM REPRESENTATIVE SNYDER offered her appreciation for there still being questions and further discussions on HB 45. She said Amendment 1 simply looks at the occupations covered, and if the committee is interested in protecting essential workers who are ensuring the public has access to food resources in the time of a pandemic during a disaster declaration, then it is an easy connection that these employees are just as important as grocery store workers. CO-CHAIR SPOHNHOLZ stated that unique about farmer's markets and those who sell produce at markets are that they can only operate during a very limited time frame. It's an attempt to ensure Alaska's farmers have a market for their produce and Alaskans have access to fresh produce, which Alaskans have not always had. If this can help keep Alaska's farmer's markets open and people working during that timeframe, it is a positive thing. REPRESENTATIVE KAUFMAN said he loves Alaska's farmer's markets and noted that they are held outdoors, so the inherent risk is a bit lower for some but not all. REPRESENTATIVE SNYDER agreed with some but not all. She pointed out that some markets are in partially enclosed pavilions. CO-CHAIR SPOHNHOLZ stated that the objection to Amendment 1 is maintained. 9:36:09 PM A roll call vote was taken. Representatives Schrage, Snyder, Fields, and Spohnholz voted in favor of Amendment 1. Representatives Nelson, Kaufman, and McCarty voted against it. Therefore, Amendment 1 was adopted by a vote of 4-3. 9:36:56 PM CO-CHAIR SPOHNHOLZ explained that final action on the bill cannot be taken without Co-Chair Fields being [physically] present, and therefore the committee would take up the bill again on [3/17/21]. CO-CHAIR SPOHNHOLZ announced that HB 45 was held over.