COVID-19 in 2022: To Presume, or Not to Presume?

Last year, the General Assembly amended Virginia Code §65.2-402.1 to add a presumption of compensability for certain employees who were diagnosed with COVID-19. The bill became effective on July 1, 2021, but the amendments themselves made it so the presumption was effective retroactively back to March 12, 2020.

That presumption also ended on December 31, 2021.

Va. Code §65.2-402.1(F)(2): “The presumptions described in subdivision B 1 shall apply to any person entitled to invoke them for any death or disability occurring on or after March 12, 2020, caused by infection from the COVID-19 virus, provided that for any such death or disability that occurred on or after March 12, 2020, and prior to December 31, 2021” (emphasis added).

As the law is currently written, there is no presumption of compensability for COVID-19 in the Virginia Workers’ Compensation Act for diagnoses of COVID that occurred in 2022. It should be noted that there is a bill (HB995) pre-filed with the General Assembly that would seek to extend the presumption from its start date of March 12, 2020, through December 31, 2022.

Absent some extraordinary process in the General Assembly, if HB995 or another bill like it passes at all, it is unlikely to be passed before late March, or signed by the Governor before April. Whatever changes the bill makes won’t take effect until July 1, 2022, unless the General Assembly adds “emergency” language, which is not currently in HB995.

What does this mean for employers and insurers confronting COVID-19 claims now? Simply put, there is no presumption for 2022 claims until such time as the General Assembly and the Governor act to create one. One cannot presume that the General Assembly will act on this bill, or that the bill that has been pre-filed will make it through both houses and the Governor’s review without significant amendment. Moreover, a claim could be filed today, denied this week, set for hearing in the spring, and decided, all before the General Assembly acts (or doesn’t act). If a COVID claim was fully and finally adjudicated before July 1, 2022, it would not matter what happened to the law thereafter. The Commission cannot disturb a final judgment simply because the General Assembly acted after their judgment became final.

At this juncture, employers should be reviewing COVID claims as if there is no presumption – because right now, there is none. As the legislative session gets underway, we may gain more information that suggests a course change, but at this time applying a presumption to a 2022 COVID claim does not accurately reflect the actual state of the law.

Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.

Ford Richardson is a full-service law firm with headquarters located in Richmond’s financial district and satellite offices in Southwest Virginia, Northern Virginia and Hampton Roads.

Our commitment to our clients is simple: offer top-tier clear legal solutions that allow our clients to excel in their business.

We are privileged to give back to our community and believe it is our responsibility to do so. Our attorneys and support staff serve as leaders and volunteers to a wide array of civic and charitable organizations.

Posted In: E-Blast