Governor’s COVID Executive Order Seeks to Address Concerns of Workers and Employers

Nancy Grover

Little Rock, AR ( – Gov. Asa Hutchinson’s latest executive order regarding COVID-19 does not create a presumption for workers. But it does, according to some, make it easier for workers who contract the virus to obtain workers’ compensation benefits. It also protects employers from lawsuits for requiring employees to work in an atmosphere that potentially exposes them to the virus.

“It basically says that COVID-19 is an infectious disease, not an ordinary disease of life, and that really all [employees] have to do is prove a causal connection,” said R. Scott Zuerker, a member at Ledbetter, Cogbill, Arnold & Harrison, Llp. “They have the burden of proof, there are no presumptions; although I suspect that it is going to be liberally construed.”

The order expanded the state’s allowed coverage for ‘infectious disease,’ which previously included only employees working in hospitals or sanitoriums where a specific disease was being treated. ‘Ordinary diseases of life” are not compensable under Arkansas’s law.

While some states, either through legislation or executive orders have issued presumptions that certain or all workers who contract the virus did so at work and are, therefore eligible for workers’ compensation, Arkansas’ order leaves the burden of proof on the employee. But as a practical matter, a presumption may not have been necessary.

“There is still the causation element; the governor made clear they need to show that,” said Albert B. Randall, Jr., President of Franklin & Prokopik in Baltimore, Md.. “But by banning the prohibition on [coverage for] the ordinary disease of life, it certainly opens flood gates and signals an inclination they will be far more receptive.”

“In my opinion, even though they have the burden of proof, it’s going to fall on you to prove they didn’t get it at work,” Zuerker said. “If I have 18 people in my office and somebody who is positive for the virus files a workers’ compensation claim, and if I’ve got another worker with COVID-19, I think that’s all they are going to have to show.”

Employers in such situations could counter such an argument by saying the affected worker lives with other people who all have the virus. But getting access to medical records and other information to show whom the employee was around for the previous several weeks could be extremely difficult.

“So I think you have the ‘rebuttable presumption,’ even though it’s not called that,” Zuerker said. “As a practical matter if you’ve got more than one person with COVID-19, I think that is all they are going to have to show.”

Protections for Employers

The governor’s order also includes language to protect businesses from the threat of civil liability. “Requiring an employee to perform work when the employer has knowledge that within the employee’s normal course and scope of the employee’s job performance, exposure to (the virus) is possible or likely is not intentional conduct that would remove the employer from the protections of the Workers’ Compensation law…”

“The governor made it clear that subjecting employees to possible COVID-19 exposures would not be intentional conduct allowing a lawsuit,” said Randall. “That’s interesting because we are starting to see not a flood of them but some lawsuits by employees against employers trying to pierce that exclusivity … the balancing of interests was particularly interesting.”

But the order is not without its critics. Some see it as simply protections for employers.

“This does nothing to improve chances for workers in Arkansas to prove that their contraction of COVID-19 is work-related,” said Bob Burke, an Oklahoma-based attorney who has been outspoken on the rights of injured workers. “What this executive order does is to fully protect Arkansas employers from civil liability, including intentional torts. The executive order clearly says that if an employer knows that its workers are subjected to COVID-19, or its mutants, in the course and scope of employment, exclusive remedy and protection from being sued in district court for negligence remains for the employer.”

Burke said the governor’s words saying he wants to provide a remedy for workers to seek benefits is a “hollow statement,” since the worker still must meet the burden of proof while employers are protected from civil liability.

“There is a constitutional argument because the Governor is changing statutes passed by the Legislature in Arkansas; in my opinion, a clear violation of separation of powers,” Burke added.

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