Gig workers and marijuana and COVID presumptions, oh my! 2020 has been a big year for workers’ compensation regulatory and legislative action.
Almost 1,200 bills were considered or introduced by legislatures in various states this year, and with COVID-19 presumptions, states have seen unexpected workers’ comp legislative trends in addition to the familiar round of marijuana and gig economy legislation.
In August, NCCI released their “2020 Regulatory and Legislative Trends Report.” To develop the report, they tracked 1,196 state and federal bills and 312 regulations. So far, 124 of these bills and 179 regulatory actions were adopted by various states.
As 2020 draws to a close, here are the top five takeaways from the report.
1) Workers’ Comp COVID-19 Presumptions
Possibly the biggest workers’ comp regulatory and legislative story of 2020 is which states have passed COVID-19 presumptions. Twenty-two states in total considered establishing a workers’ comp presumption for the viral disease and nine states enacted legislation.
Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin and Wyoming all passed presumptions that provide workers’ comp benefits to specific employee populations that contract COVID-19.
Regulatory activity, like executive orders and emergency rules, also extended coverage to workers’ in some states. Connecticut, Florida, Kentucky, Michigan, Missouri, New Hampshire, and New Mexico all extended coverage for COVID-19 to certain workers through regulatory activity.
Many of these measures are temporary and are expected to expire once the pandemic ends, though some executives worry presumptions for infectious disease may expand beyond COVID-19.
2) Mental Health Injury Compensability
Five states passed bills that addressed the compensability of mental health, with many focused on when PTSD is and isn’t covered by workers’ comp.
Colorado, Nebraska, Virginia, Washington and Wyoming all passed bills that related to mental health in workers’ comp and 16 other states are considering similar legislation. Other bills, like Florida’s HB 415/SB 816, which would have benefits for PTSD to certain correctional officers, did not pass this year.
Virginia’s HB 1596 was one of the widest reaching bills considered in 2020. Though it didn’t pass, the bill would have extended workers’ comp benefits to anyone who experienced a psychological injury caused by sudden shock or fright that arose within the course of employment.
Virginia was able to pass HB 438/SB 561, which makes PTSD a compensable illness for law enforcement and firefighters if certain conditions are met.
With this bill, Virginia joins the growing list of states that have enacted or considered legislation to make PTSD a compensable illness. More than 50 bills related to PTSD were monitored by NCCI this year.
3) Marijuana Legalization
Marijuana had a great year in 2020. A green wave swept the country as five states passed ballot measures that legalized marijuana.
Five states — Arizona, Montana, New Jersey and South Dakota — legalized recreational marijuana and two states — Mississippi and South Dakota legalized medicinal cannabis.
In total, 35 states and Washington D.C. have legalized medical marijuana. Fifteen states and D.C. have laws legalizing recreational marijuana on the books.
At the federal level, the U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement (MORE) Act.
The bill would remove marijuana from the list of Schedule I drugs in the federal Controlled Substances Act and it would eliminate criminal penalties for people who manufacture, distribute, or possess marijuana. It is unlikely to be taken up by the Senate in 2020.
4) Single-Payer Health Insurance Proposed in 14 States
While Bernie Sanders’ failed bid for the presidential nomination may have side-lined conversations about single-payer health care at the federal level, individual states are still introducing bills that could make the system a reality in some jurisdictions.
NCCI reports that 14 states have contemplated legislation that would establish a single-payer health insurance program.
Of those states, four have included workers’ compensation benefits in their plans. They are New York, Maine, Massachusetts and Maryland.
So far, Vermont is the only state that has enacted single-payer health care. The proposal was quickly abandoned, however, due to the cost of payroll and income taxes.
5) Gig Economy Legislation
This year, California again debated the issue of whether people working in the gig economy are employees or independent workers.
Two bills were enacted and many others were introduced to amend the ABC test that was introduced in Assembly Bill 5.
Passed in 2019, AB 5 created the ABC test which determines that a worker is an employee and not an independent contractor unless they are free from control of the hiring entity, perform work that is outside of their employer’s usual business and are engaged in “an independently established trade, occupation, or business,” that matches the work they are performing for their employer.
The two bills that were passed, Assembly Bill 323 and Assembly Bill 2257, create exemptions from the ABC test for newspaper carriers and artists, musicians and photographers, respectively.
Other bills proposed similar exemptions or advocated for repealing the test and replacing it with a different system entirely for determining employment status.
Additionally, the ballot measure Proposition 22, which sought to classify drivers app-based ride share and deliver companies as independent contractors rather than employees, was approved by California voters.
These challenges prove the difficulty legislatures may face in regulating the gig economy going forward. If other states follow California’s lead, they may face similar legislative and ballot measure challenges. &
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