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AG Shoots Down Presumption Rule as Political Divide Deepens

By William Rabb (Reporter)

Friday, May 15, 2020 | 1497 | 1 | 69 min read

A spirit of cooperation seen in the early days of the COVID-19 pandemic has morphed into hostile fire on the plains of Kansas, and a presumption rule for essential workers appears to be one of the casualties.

Attorney General Derek Schmidt

Kansas Attorney General Derek Schmidt

The Kansas Attorney General this week shot down a rule requested by the state's Democratic governor and drafted by her labor secretary. The rule would have extended a presumption of workers' comp benefits for first responders, health care employees and other essential workers who fall ill or die from the coronavirus.

Under Kansas law, which is different from most other states, the attorney general must review agency regulations. Attorney General Derek Schmidt, a Republican, said that only the Legislature, not the Department of Labor or the governor, has the constitutional authority to rewrite the state's comp law, even during a state of emergency.

Even some Democrats agreed that Schmidt was constitutionally sound in his reasoning.

“He's probably correct in that it can't be done without the Legislature,” said state Rep. John Carmichael, a comp lawyer in Wichita.

Schmidt's torpedo comes at a critical juncture, though, and the Legislature is unlikely to act on a presumption bill anytime soon.

The Republican-held Legislature adjourned early in the pandemic and is scheduled to return for only one day, May 21. That mini session is expected to focus on trimming the governor's emergency powers and executive orders, leaving little time for workers' comp issues.

Although Gov. Laura Kelly has won praise for her handling of the COVID-19 health crisis, she also earned the wrath of some groups after she shut down church gatherings and moved to reopen the economy more slowly than some would like.

Kelly's Labor Secretary Delia Garcia, who's also been under fire for problems with an unemployment compensation system that has been overwhelmed with claims, has drafted a revised workers' comp presumption rule. But it's similar to the first attempt and Schmidt is expected to nix it as well.

“They were trying to provide some sort of coverage to the workers who are out there making sure the rest of us get food and healthcare,” Carmichael said. “But he'll probably disapprove it, too.”

Garcia said the agency was trying to help workers who need it most.

“We have been moved by many heartfelt messages we have received from people pleading for this protection,” Garcia said at a news conference. “Our frontline workers are already heroes, but they should also not be martyrs.”

Kansas was the fifth state to attempt to promulgate a presumption expansion through agency rulemaking without legislative approval and is the second state agency to have its action struck down.

In Illinois, the state Workers' Compensation Commission in April approved new rules of evidence that expanded a presumption that any essential worker, including grocery workers and marijuana producers, contracted the disease through employment. But after business groups filed a suit calling the action unconstitutional, a judge halted the rule and the commission rescinded it last month.

In three other states, Alaska, Minnesota and Utah, legislatures have passed laws creating presumptions that COVID-19 is compensable for first responders, health workers and others.

In four more states, governors have issued executive orders to that effect.

Until this week, presumption legislation in Kanas may have had a shot at passage, despite years of hostility from pro-business groups in what has been called the reddest of red states. The presumption idea was briefly coupled with a bill that would have granted employers immunity from liability and negligence lawsuits that may arise from the disease.

Labor unions have come out strongly against that measure, arguing that without tort remedies and without a presumption, workers would be left completely unprotected. Some employers have failed to provide personal protective equipment to their workers, labor leaders said.

“No one wants to get back to work more than our members. However, this is not a time to return to 'normal.' This is a moment in time to prove we can do better to protect workers,” reads a letter from the Kansas AFL-CIO to the chairman of the House Judiciary Committee. “Our organization is concerned that big business in Kansas has persisted to utilize employees with only profit in mind and compromise their safety. That is not a track record to continue to pursue during the COVID-19 pandemic. We can do better.”

But stakeholders said the political divide deepened on Wednesday, when Republicans threw down the gauntlet.

Under Kansas law, developed in the 1970s, a governor's emergency order may remain in effect for only two weeks, although the Legislature can extend it. But with the session adjourned, it fell to what's known as the Finance Council, made up of the governor and legislative leaders. Instead of extending the order for another 30 days, as Kelly had requested, the Republican-dominated council limited it to just 12 days.

That puts Kelly in a corner, according to state news reports and lawmakers. At the May 21 session, she may be faced with an impossible choice: sign a bill limiting her own powers or let her executive order expire on May 26. An end to the emergency declaration could mean an end to significant federal funding while the pandemic continues to spread, Carmichael said.

Any concerns that business groups may have had about the presumption expansion rule have taken a back seat as the political skirmishing and reopening push has continued. The Wichita Chamber of Commerce, often outspoken on workers' comp issues, had little to say about it Thursday.

“While we agree with Attorney General Schmidt that this change, if made, would need to be done through the legislative branch, we really haven’t had the opportunity to vet the policy with our members and leaders,” said Chamber President Gary Plummer.

A human resources association, which also has been at the forefront of comp issues in recent years, noted that its members had not focused on the issue lately.

The shootdown of the Labor Department's presumption rule came the same day that the Kansas Department of Corrections announced the deaths of two correctional workers due to COVID-19 complications, news outlets reported. It's doubtful that their families will receive workers' comp death benefits, because the presumption was not in place, officials have said.

Add it's not just correctional officers and health workers who are in jeopardy now, Carmichael said. He noted that lawmakers are normally covered by comp if injured on the job, but they probably won't be if they contract the disease while meeting in the May 21 session.

“I do not want to walk back into the Capitol,” Carmichael said. “It's going to be like the world's largest petri dish.”

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