Christin Pounds worked six months at Burlington Health and Rehabilitation as a licensed nursing assistant before she lost her senses of smell and taste.
Today, that’s a red flag for COVID-19, the sometimes fatal disease caused by the coronavirus, but then, in late March, it was just strange.
“I thought I had a sinus infection,” Pounds said. “I Googled it. I was talking to people at work, other nurses and health care workers. ‘Isn’t it strange? I can’t smell or taste a thing. That’s weird.’ But nobody knew anything about it.”
Soon enough, Pounds had a fever. She was coughing and suffering shortness of breath. Pounds would battle COVID-19 for three weeks. She was never hospitalized, but she lay in bed for an entire week.
“Any little trip out of bed, I had to stop midway down the hall with rapid breathing to catch my breath,” Pounds said. “That was scary.”
Burlington Health and Rehab recorded one of the first two deaths from COVID-19 in Vermont among its patients. Ultimately seven patients would die from contracting the disease at the facility.
Pounds was out of work for a month. Burlington Health and Rehab contacted workers’ compensation at the Vermont Department of Labor on her behalf, she said. Pounds soon received a call from a workers’ compensation representative about her claim for replacement wages.
“They told me they were going to push it through really quickly,” Pounds said. “I didn’t know anything about workers’ comp, or even that I was eligible.”
The Vermont Legislature just passed a bill that would ensure other workers in harm’s way from COVID-19 receive the same fast-track treatment as Pounds if they are stricken with the disease. Legislators want to make sure all workers exposed to the public, not just health care workers, are included.
Vermont’s business community objected strenuously, but the bill passed anyway and was sent to Gov. Phil Scott.
What about grocery store clerks?
As a front-line health care worker, Pounds benefited from the presumption that she contracted COVID-19 on the job. She didn’t have to prove she was infected at work, as is routinely required for other types of workers’ compensation claims.
Rather, to deny the claim her employer would have to prove she was not infected at work, by either identifying a clear source of infection from outside the workplace, or by proving to a legal standard that they strictly adhered to the Agency of Commerce and Community Development’s COVID-19 regulations.
Other workers exposed to the public, and potentially the disease, have not benefited from the same presumption Pounds enjoyed. Grocery store clerks, for example. They have not been considered front-line workers, with a “presumption of compensability,” as workers’ comp jargon puts it. The bill changes that.
“The grocery store clerk is now treated exactly the same as the (licensed nursing assistant),” said Rep. Jean O’Sullivan, D-Chittenden, who wrote the House version of the bill. “We’ve given them the presumption.”
The bill also gives Labor Commissioner Michael Harrington the authority to add any occupations not covered by the current language that he considers at elevated risk for contracting COVID-19.
Sen. Michael Sirotkin, D-Chittenden, said the presumption of compensability is “critical” for COVID-19 because it’s not like a typical worker’s compensation claim involving a physical injury that clearly happened on the job.
“It’s far from a slip-and-fall injury on the factory floor, when you know it was work-related,” Sirotkin said. “The employer can come back and say, ‘I don’t think you contracted COVID-19 at work, I think you contracted it off the job.'”
Employers worry about ‘cost risk’
Vermont’s business community opposed the bill.
Charles Martin, government affairs director for the Vermont Chamber of Commerce, called the legislation “well-intentioned,” but said Vermont’s workers’ compensation law already provides a path to recognize COVID-19 related claims for front-line workers.
“This bill, from our perspective, is going to unnecessarily raise uncertainty and cost risk at a time when employers are struggling to survive,” Martin said.
Martin explained the uncertainty and cost risk comes in part from the provision in the bill that allows the commissioner of labor to create new categories of workers who will be presumed to have contracted COVID-19 at work.
“The labor commissioner can say, ‘I think all these categories are eligible,'” Martin said. “The question we have is where would that stop? How would it be constrained?”
Martin said employers are also concerned by the impossibility of mitigating for COVID-19 after work hours. At work, he said, employers are doing everything they can to prevent the spread of the disease, complying with local, state and federal guidelines. But outside of work, employers rightfully have no control over what their employees choose to do.
Let the feds pay
Austin Davis, Martin’s counterpart at the Lake Champlain Regional Chamber of Commerce, contends there are federally funded programs, such as the Families First Coronavirus Response Act, which could take care of workers contracting COVID-19 on the federal government’s dime, rather than the state’s.
Davis also said this legislation was originally presented when Vermont was in the “Stay Home Stay Safe” era, essentially in lockdown.
“Really the only place you would go and contract COVID-19 was at work,” he said. “However now we’re in the Be Smart Be Safe era. There are a lot of opportunities for individuals to contract COVID-19 out of the workplace.”
Davis goes so far as to say the bill creates an incentive for people to not be forthcoming with contact tracers, because it might rebut the presumption they were infected at work.
Contact tracing is a technique by which interviewers try to determine everyone a person who came down with COVID-19 was in contact with in order to get those people tested for the coronavirus.
“I went to work, now I’m sick, it has to be because I went to work,” Davis said. “Life is much more complicated than that.”
David Mickenberg is a partner at a law firm in Burlington, and acted as a lobbyist for Working Vermont, a coalition of public and private sector labor unions representing thousands of nurses, firefighters, police officers, educators and state employees.
Mickenberg said there is no evidence suggesting the workers’ compensation bill is going to result in economic hardship for the state’s employers.
“It’s really disheartening,” Mickenberg said. “We hear all these platitudes, ‘We support our essential and front-line workers.’ When it really comes down to it, we don’t see that support. We see pure opposition from business and the insurance industry.”
Gov. Scott has until July 13 to either sign the bill, veto it or allow it to become law without his signature.
Contact Dan D’Ambrosio at 660-1841 or firstname.lastname@example.org. Follow him on Twitter @DanDambrosioVT. This coverage is only possible with support from our readers. Sign up today for a digital subscription.
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