Presumption Law Excludes Those Who Refuse Vaccine

Nancy Grover

Richmond, VA (WorkersCompensation.com) – In a new twist on presumption laws, Virginia is citing the refusal to get an employer-offered vaccine as an exception to the law. Gov. Ralph Northam signed HB 1985 this week, giving healthcare workers who contract COVID-19 an edge in getting workers’ compensation benefits. But the law includes the vaccine caveat:

“The presumptions … shall not apply to any person offered by such person’s employer a vaccine for the prevention of COVID-19 with an Emergency Use Authorization issued by the U.S. Food and Drug Administration, unless the person is immunized or the person’s physician determines in writing that the immunization would pose a significant risk to the person’s health. Absent such written declaration, failure or refusal by a person subject to the provisions of this section to undergo such immunization shall disqualify the person from the presumptions …”

Absent a denial to accept an employer’s offer to provide a vaccine, infected healthcare workers who diagnose and/or treat people known or suspected of having the virus will be presumed to have contracted the virus at worker and, therefore, be entitled to workers’ compensation benefits “unless such presumptions are overcome by a preponderance of competent evidence to the contrary,” the law states. The virus “shall be established by a positive diagnostic test for COVID-19 and signs and symptoms of COVID-19 that require medical treatment…”

Virginia is one of numerous states that have adopted presumptions for certain workers. But many workers’ compensation stakeholders have criticized them, saying the workers’ compensation system is adequate to handle these claims without such presumptions.

“These laws are often based more on perceptions and politics than actual science,” said Robert Wilson, president & CEO of WorkersCompensation.com. “The vaccine exemption is a unique twist. It will deny benefits to any healthcare worker who refuses the vaccine but appears to provide no protection for employers if there is a negative reaction to those vaccines. This law appears to be a backend maneuver that will essentially put employers in the position of mandating the vaccine, and therefore exposing them to potential liability if a problem arises.”

The bill is retroactive to March 12 of last year and will be effective through Dec. 31, 2021. That means many workers who previously filed workers’ compensation claims and were denied could now be eligible.

“The retroactivity issue always frustrates employers and insurers because the rules of the game were changed on them after policies were made and premiums paid,” noted Albert B. Randall, Jr., principal at Franklin & Prokopic in Baltimore. Maryland is identified as one of several additional states considering a Virginia-like vaccine exemption to presumption laws, according to Reuters.

While the exemption may seem to help employers seeking to have vaccinated employees, it will likely only have a meaningful impact in a small fraction of cases, Randall said.

“I’ve seen some attack the bill as a way to force mandatory vaccine policies on employees, but I don’t see that at all,” he said. “Employees are free to reject vaccines and they still have the ability to file claims. They just don’t receive the benefit of the presumption. I believe the counter argument is a false narrative.”

Employers in many industries have indicated they likely won’t mandate that their employees receive the vaccine. Two legal reasons employees could reject a vaccine that is mandated are due to a disability and sincerely-held religious beliefs. “Interestingly, this [Virginia] bill addresses disability objections but ignores religious ones,” Randall added.

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