Editorial: Proposed COVID-19 Presumption Likely to Create Litigation

Tuesday, March 16, 2021 | 0

Legislation that would create a presumption that COVID-19 is compensable for some essential workers in New Mexico would likely result in litigation over whether an employee or an employer violated public health orders, according to an editorial published by the Carlsbad Current-Argus.

House Bill 268, by Rep. Dayan Hochman-Vigil, D-Albuquerque, would create a presumption that COVID-19 is compensable for essential workers who have established that their employer “has not strictly complied” with public health orders related to the pandemic.

The presumption would apply to first responders, medical personnel, teachers, construction trade workers “and others whose work brings them into repeated and direct personal contact with those diagnosed with the coronavirus disease 2019.”

Employers could rebut the presumption by proving the worker engaged in conduct or activities outside of employment that “substantially violated” public health orders.

HB 268 would also prohibit using data for any COVID-19 presumption claims to set future comp rates.

The state House of Representatives voted 38-27 to pass the bill to the Senate on March 8.

The Carlsbad Current-Argus said the bill would throw the state’s comp system into chaos. Workers’ compensation is a no-fault system that doesn’t require litigation to determine whether a worker or an employer made a mistake.

“But this bill provides coverage only if the employer did something wrong, and denies coverage if the worker did something wrong,” the editorial reads. “That forces cases to be litigated. It’s the opposite of workers’ compensation. If the sponsors want workers to get compassionate and immediate coverage, they wrote the wrong bill.”

The newspaper also suggested that the workers’ compensation “penalizes” careless employers by raising insurance premiums in future years. By prohibiting the use of COVID-19 claims when calculating future premiums, the bill gives “careless employers” a pass, according to the editorial.