New legislation affecting health care and frontline workers sets forth a different exposure standard for each affected group to establish an occupational disease presumption.

Myla Sepulveda

In response to the global pandemic, the Washington Legislature recently passed SB 5115 (“Health Emergency Labor Standards,” or “HELSA,” for short) and SB 5190 (“Providing health care workers with presumptive benefits during a public health emergency”), which were signed into law by Gov. Jay Inslee on May 11.

Frontline workers’ presumption (SB 5115)

HELSA applies to employees working in industries ranging from health care and retail to hospitality and education — many of the industries disproportionally dominated by self-insured employers. For frontline employees working in these industries, there is currently a presumption that any infectious or contagious diseases that are the subject of a public health emergency — transmitted through aerosols, respiratory droplets or through contact with contaminated surfaces — are occupational diseases.

The HELSA bill limits the applicability of the presumption to respiratory diseases; it does not apply to all diseases. For example, if there is an Ebola outbreak and the governor declares a state of emergency, Ebola will not be considered an occupational disease because it is not a respiratory disease.

However, if the disease is COVID-19 or whooping cough, then it will be considered an occupational disease rebuttable only by a preponderance of the evidence that the exposure to the disease did not occur at work; the employee was working from home; or the employee was on leave for a period of quarantine.

In Washington workers’ compensation, this is the “more probable than not” standard with which we are all familiar. In other words, the evidence needs to be greater than only a 50% likelihood of being true. This is not the case with SB 5190.

Health care workers’ presumption (SB 5190)

SB 5190 applies only to health care employees working in any health care facility or organization that provides emergency or medical services. The presumption under SB 5190 applies to any infectious or contagious diseases, regardless of transmission, that are the subject of a public health emergency. The diseases are limitless.

This means that even Ebola would be considered an occupational disease under SB 5190, since there is no clause limiting the application to respiratory diseases.

While the SB 5190 presumption is rebuttable, the evidentiary standard is harder to overcome. Under this bill, the occupational disease presumption may be rebutted by clear and convincing evidence that the exposure to the disease occurred outside of the workplace. This means that the employer must show that it was substantially more probable than not to be true.

Practically speaking, this means that the employer may now require multiple medical experts to establish that it was substantially more probable than not that the employee contracted the disease outside of the workplace if there is a split in the medical evidence.

Furthermore, if the current approach to COVID-19 is any indicator of how it will be applied to future presumptions, it will likely be an uphill battle: The May 7, 2021, COVID-19 claims count for self-insured employers shows that of the 2,420 claims allowed, only 220 have been rejected.

What does this mean for employers? Health care and other industries must be vigilant any time there is a public health emergency, take immediate steps to keep their workers safe and prevent the spread of the disease. While most non-health care industries need only be concerned with respiratory diseases for the occupational disease presumption to apply under HELSA, health care industries must be mindful of all communicable diseases for the presumptions that apply under HELSA and SB 5190.

It is no surprise that COVID-19 has significantly changed the way we live: where we eat, where we work and with whom we associate. The same is true for Washington law.

Myla Sepulveda is a litigation attorney in Reinisch Wilson Weier PC's Portland, Oregon, office. This column is republished with permission from the firm's website.