On May 11, 2021, Gov. Jay Inslee signed Engrossed Substitute Senate Bill (ESSB) 5115, also known as the Health Emergency Labor Standards Act (HELSA), and ESSB 5190 into law, making them effective immediately.
ESSB 5115 provides presumptive workers’ compensation coverage for frontline workers who contract an infectious disease that is the subject of a public health emergency. The bill created RCW 51.32.181: Occupational diseases—Public health emergencies—Infectious or contagious diseases.
ESSB 5190 provides coverage for healthcare workers. This bill created RCW 51.32.390: Health care employees—Presumption of occupational disease for infectious or contagious diseases which are the subject of a public health emergency—Rebuttal—Limitations—Costs.
Under the new laws, health care workers who contract or are quarantined for the disease which is the subject of a public health emergency and frontline workers who contract the disease are presumed to have been exposed or to have contracted the disease through their work activity. Allowing a claim will be decided based on the new laws.
These laws have been applied to the COVID-19 pandemic pursuant to Gov. Inslee declaring a public health emergency on February 29, 2020. The state emergency ended on Oct. 31, 2022.
Presumptive coverage for COVID-19 ends when the both the state and federal public health emergencies have ended. Health care and frontline workers will continue to be eligible for presumptive coverage until the president of the United States declares an end to the federal public health emergency. Claims for COVID-19 falling outside the presumptive coverage will be considered under standard occupational disease criteria.
Questions About Presumptive Coverage for Health Care and Frontline Workers
When do the new laws apply?
The new laws apply during public health emergencies involving infectious or contagious diseases, such as the COVID-19 pandemic. ESSB 5190 provides presumptive coverage to health care workers exposed to COVID-19 starting Feb. 29, 2020, when Gov. Inslee declared a state of emergency. The HELSA bill applies to frontline workers when both the exposure occurs and the claim is filed on or after May 11, 2021, when the new laws took effect. Presumptive coverage for COVID-19 ends when the both the state and federal public health emergencies have ended.
After the emergency has ended, claims for healthcare and frontline workers may continue to be considered for presumptive coverage so long as:
- The contraction or exposure occurred between the date the coverage was effective and the end of the emergency.
- The claim is filed timely per RCW 51.28.055.
- The claim otherwise meets the criteria for allowance.
Who is a health care worker?
A health care worker is a worker at any health care facility or other organization that provides emergency or medical services and who has or likely has had direct contact with any person who has been exposed or tested positive to the disease.
Who is a frontline worker?
Frontline workers are those who interact with the general public or other employees in the course of their work during the public health emergency. The list includes:
- First responders
- Workers performing food processing, manufacturing, distribution, or meat packing
- Maintenance, janitorial, and food service workers at any facility treating patients
- Public transit drivers and operators
- Employees of licensed child care facilities
- Employees of retail stores, which remain open to the public during the emergency
- Employees of hotels, motels, or other transient accommodation
- Restaurant employees who have contact with the public or co-workers
- Certified home care aides who work primarily in the home of individuals receiving care
- Corrections officers and support employees working at a correctional institution
- Certain school district and higher education employees
- Public library employees
- Department of Licensing employees who are assigned to review, process, approve or issue driver licenses to the public.
- Please see RCW 51.32.185 for more details on who is a front line worker.
How do I prove I qualify under the new law?
You will be required to provide proof to the Washington State Department of Labor & Industries (L&I) or your self-insured employer that you contracted the disease. Generally, this includes a positive test result from a medical provider.
Could my claim be excluded from coverage?
Your claim may be excluded if there is evidence that you did not contract the disease through your work. This could happen if the disease occurred from other employment or non-employment activities, you were working from home or another location, or you were on leave for a period of time prior to contracting the disease.
What benefits will I receive?
Once a claim is allowed, workers are eligible for medical and disability benefits. Temporary compensation, or time-loss benefits, begins the day after the earliest of the following:
- The first missed work day due to symptoms.
- The day the worker was quarantined by a medical provider or public health official.
- The day the worker received a positive test result confirming contraction of the infectious or contagious disease.
What if I already received benefits from the state or federal government?
Time-loss benefits will not be paid for the same period of time if another federal or state program provided compensation for time missed from work due to the disease (such as the Families First Coronavirus Recovery Act program in 2020).
Do I need to see a medical provider to have a claim for contracting COVID-19 allowed?
It isn't required in most cases where presumptive coverage applies. The law does require you to provide verification that you contracted COVID-19. This can be accomplished by providing L&I with a copy of your positive COVID-19 test results.
L&I can accept a test result from:
- Your employer if they administer the test and record the date and result.
- A pharmacy.
- A county health department or other temporary testing facility.
- Other commercial locations that are providing testing.
L&I cannot accept a self-administered home test. The test must be performed and recorded by a medical provider or one of the parties in the list above.
L&I accepts both Rapid Antigen Tests (RAT) and Polymerase Chain Reaction (PCR) tests for verification that you have contracted COVID-19.
Most claims for COVID-19 resolve with time and home care and never require a medical provider's treatment. If this is not the case and your illness lasts beyond the typical quarantine period, you will need to have an attending medical provider who can coordinate any needed treatment as well as certify the need for additional time away from work.
What if I'm not a frontline worker or health care worker, but I contract COVID-19 or I am required to quarantine by a medical provider or public health officer?
Contraction of a disease that is the subject of a public health emergency is not presumed to be work-related for those who are not frontline or health care workers. Claims for these workers are reviewed on a case-by-case basis to determine whether the worker had a greater likelihood of contracting the disease because of the job duties. There must also be a documented or probable work-related exposure.
How do I file a claim?
Workers for employers insured through the Department of Labor and Industries (L&I) can file a claim online, by phone, or with a paper Report of Accident available from their medical provider.
Workers for self-insured employers should contact their employer to obtain a Self-Insurer Accident Report (SIF-2). Their employer can discuss the claim process in detail. If you have additional questions, contact Self-Insurance Training at 360-902-6904.
Will an employer's experience rating or premium assessments be affected?
During the public health emergency, these claims will not be included in the costs used to calculate experience rates of State Fund employers. Self-Insured employers may deduct the costs from the total claim costs reported for administrative assessment purposes.
Where can I find more information about HELSA worker safety and health requirements?
L&I's Division of Occupational Safety and Health (DOSH) is leading the work to implement worker safety and health requirements and protections under HELSA. This includes employer reporting of disease outbreaks in the workplace, protection of high-risk employees from discrimination, and notifying employees of potential exposure in their workplace. Email EyeOnSafety@Lni.wa.gov with questions about these worker safety and health requirements and protections.
Email HELSA@Lni.wa.gov if you have additional workers' compensation questions about HELSA or ESSB 5190 requirements.