by Choity Kahn
On July 24, Connecticut Governor Ned Lamont signed Executive Order No. 7JJJ, which creates a rebuttable presumption that all employees who were required to work on site and tested positive for COVID-19 during the first three months of the pandemic contracted the disease while on the job, giving employees a presumptive claim to workers’ compensation coverage. Connecticut follows suit with states such as Arkansas and California in taking executive order action to make it easier for pandemic workers to access workers’ compensation benefits.
In order for employees to avail themselves of the presumption created by Executive Order No. 7JJJ, the employee must:
- exhibit that he or she missed a day or more of work between March 10, 2020 and May 20, 2020, inclusive, due to a diagnosis of COVID-19, or due to symptoms that were diagnosed as COVID-19;
- exhibit that he or she worked, at the direction of the employer, outside the home during at least one of the fourteen days immediately preceding the date of injury, and had not received an offer or directive from the employer to work from home instead of from his or her place of employment;
- exhibit that he or she was employed by an employer deemed essential by the Department of Economic and Community Development pursuant to Executive Order 7H if the date of injury was more than fourteen days after March 23, 2020;
- confirm the contraction of COVID-19 by a positive laboratory diagnostic test or written diagnosis provided by a licensed physician, licensed physician’s assistant, or licensed advanced practice registered nurse within three weeks of the date of injury; and
- furnish to the employer and insurer a copy of such positive laboratory diagnostic test result or written diagnosis.
The Order defines the “date of injury” as the date between March 10, 2020 and May 20, 2020 that the employee was first unable to work or died due to a diagnosis of COVID-19 or to symptoms that were diagnosed as COVID-19, whichever occurred first.
The presumption created by Executive Order No. 7JJJ may be rebutted only if the employer or insurer demonstrates to a workers’ compensation commissioner by a preponderance of the evidence that the employment of the individual was not the cause of his or her contracting COVID-19. Those employees who have contracted COVID-19 but do not meet the criteria to assert this workers’ compensation presumption are nonetheless not precluded from making a workers’ compensation claim under Chapter 568 of the Connecticut General Statutes.
The Order additionally provides that any wage replacement benefits paid under §§ 31-307 or 31-308(a) of the Connecticut General Statutes shall be reduced by the amount of any paid sick leave available to an employee through the Emergency Paid Sick Leave Act set forth in sections 5101 et seq. of the Families First Coronavirus Response Act or through another paid sick leave program specifically available in response to COVID-19 and separate from any accrued paid time off regularly available to the employee.
The Order also expands General Statute § 31-290a to prohibit employers from deliberately misinforming or dissuading an employee from filing a claim for workers’ compensation benefits, in addition to prohibiting the discharge or discrimination of an employee for filing such a workers’ compensation claim.
Executive Order No. 7JJJ will remain in effect for 6 months, unless earlier modified or terminated. You can review the Order at https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-Order-No-7JJJ.pdf. The Governor’s Order will certainly be of interest to the Connecticut construction industry, as much of the industry was deemed an essential business and its employees permitted to work on the job site from March 10 to May 20, despite the statewide work-from-home mandate.
Choity Khan is an associate at Robinson+Cole representing clients in the construction industry. She is also on the board of (SABAC) South Asian Bar Association of Connecticut.