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2021 is shaping up to be a busy year for Workers' Comp legislation

According to a recent report by the National Council on Compensation Insurance (NCCI), five trends that emerged in 2020 are likely to have a major impact on Workers' Comp in 2021.

  1. Presumptions

    COVID-19 presumptions

    • NCCI is currently monitoring COVID-19 workers compensation presumption legislation in 20 states. Vermont and Illinois have enacted legislation extending the workers' compensation COVID-19 presumption provisions passed in 2020. Alaska, Minnesota, and Wisconsin are considering legislation to extend their presumptions, expand the types of workers covered under their presumptions, and/or apply their presumptions retroactively. States that are considering new presumptions for certain workers include Connecticut, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Texas, and Virginia. Arkansas and the District of Columbia are considering legislation providing that COVID-19 is a compensable injury or occupational disease.
    • A review of this legislation shows a broader scope than the legislation passed in 2020. While 2020 legislation focused on first responders and healthcare workers, current legislative proposals would establish presumptions for additional categories of workers, including teachers, school employees, and nurses. Legislation in Connecticut and Iowa would establish presumptions applicable to all employees in the state.

    Presumptions beyond COVID-19

    • Twelve states including Alaska, California, Connecticut, Florida, Iowa, Michigan, Missouri, New Mexico, New York, Rhode Island, Texas, and Washington have introduced legislation that would establish workers' compensation presumptions for infectious diseases and pandemics. Many include terms such as "contagious disease" and do not have expiration dates, suggesting they would establish workers' compensation presumptions for infectious diseases and pandemics and may not be temporary.
  2. Workplace-related mental injuries
    • NCCI is monitoring about 40 bills related to workers' compensation for mental injuries, including 30 related to PTSD. The definition of "mental injury" varies significantly by state. New York is considering a bill for mental injuries premised upon extraordinary work-related stress.
  3. Legalization of marijuana
    • Several states are considering the legalization of marijuana in some form, including Florida, Hawaii, Minnesota, Nebraska, New Mexico, New York, and Virginia. In Virginia, lawmakers passed legislation that wouldn't take effect until Jan. 1, 2024, but the Governor is expected to ask the legislature to legalize the adult possession of an ounce or less of marijuana beginning on July 1. In New York, following several failed attempts, state lawmakers struck an agreement on March 25 with Gov. Andrew M. Cuomo to legalize recreational cannabis for adults 21 and older.
    • Marijuana legalization impacts Workers' Comp in several ways, including medical reimbursement, worker impairment, and compensability if impaired. Although 36 states allow some sort of medical or recreational marijuana use, with 16 states allowing both, there are no overarching guidelines for marijuana use and its place in workers' comp. Six states, Arizona, Arkansas, Florida, Montana, North Dakota, and Washington, explicitly exclude marijuana as a treatment option for injured workers. Just five states require carriers to reimburse for cannabis treatments in workers' comp - Connecticut, Maine, Minnesota, New Jersey and New Mexico. A host of other jurisdictions, including California, Illinois, New York and Washington, D.C., allow cannabis as a treatment option in workers' comp. Kentucky and Nebraska have introduced legislation providing that medical marijuana reimbursement is not required in workers' compensation and New Jersey has pending legislation that would require reimbursement for medical marijuana. A Maryland proposal provides that an employee is not entitled to workers' compensation benefits if medical cannabis was the sole cause of the injury and the medical cannabis was not administered or taken with the written certification of a certifying provider or the written instruction of a physician.
    • With the new administration, federal legislation to remove marijuana from the list of Schedule 1 substances in the federal Controlled Substances Act may get traction this year. The law includes language requiring that injured workers using medical cannabis receive the same protections afforded other workers using prescription drugs.
  4. Single-payer health insurance programs
    • This year 10 states are considering legislation to establish a single-payer health insurance program. Five of those states, California, Iowa, Maryland, Rhode Island, and Texas, specifically mention workers' compensation or injured workers' medical benefits in their proposals.
  5. Independent contractors/gig economy
    • NCCI is tracking workers' compensation-related independent contractor legislation in 13 states so far this year. Utah has passed legislation that creates the Remote Service Marketplace Platforms Act and establishes that a remote-service contractor is not an employee of a marketplace company if they meet certain conditions. West Virginia has introduced several bills that provide criteria for determining whether a worker is an employee or an independent contractor for workers' compensation purposes.