As anticipated, Governor Lamont issued Executive Order 7JJJ (“EO”), creating a workers’ compensation rebuttable presumption that an employee who missed a day or more of work between March 10, 2020 and May 20, 2020, due to a diagnosis of COVID-19 or due to symptoms that were diagnosed as COVID-19, contracted the virus at work. The EO defines the “date of injury” as the date that the employee was unable to work or died due to a COVID-19 diagnosis or symptoms that were diagnosed as COVID-19, whichever comes first.
The rebuttable presumption under the EO requires:
  • that the employee worked outside of his/her home at least one of the fourteen days immediately preceding the date of injury and had not received either a directive or an offer to work exclusively from home;
  • that the employee was employed by an essential business, as defined in the Department of Economic and Community Development (“DECD”) guidance, if the date of injury occurred on or after April 6, 2020;
  • that the employee proves diagnosis confirmation by either a positive laboratory diagnostic test dated within 3 weeks of the date of injury, or documentation by a licensed physician, a licensed physician’s assistance or a licensed APRN, dated within 3 weeks of the date of injury; and
  • that a copy of such diagnosis is provided to the employer or insurer.

Under this EO, an employee that self-quarantined but sought no formal diagnosis would not be eligible to use the rebuttable presumption. Employers may rebut the presumption by demonstrating, by a preponderance of the evidence, that the employee did not contract COVID-19 at work.

It is worth noting that the EO states that any workers’ compensation benefits paid must be reduced by any amount paid under the FFCRA. However, the federal DOL specifically prohibits use of FFCRA benefits if the employee is receiving workers’ compensation benefits. The availability of retroactive pay under this workers’ compensation scheme calls into question whether an employer will be required to seek repayment made to an employee under FFCRA and address any tax credit taken when retroactive workers’ compensation benefits are awarded. Further, Conn. Gen. Stat. § 31-290a, which prohibits discrimination against an employee claiming workers’ compensation benefits, is expanded under the EO to prohibit deliberately misinforming or otherwise deliberately dissuading an employee from filing a claim for workers’ compensation benefits.

Employers should be aware that the EOs are currently set to expire on September 9, 2020. It is, however, rumored that the legislature will take action to codify the rebuttable presumption and other changes contained in this EO.

Should you have any questions, please contact your Carmody attorney or any of the team members below.

D. Charles Stohler
(203) 575-2626; cstohler@carmodylaw.com

Giovanna T. Weller
(203) 575-2651; gweller@carmodylaw.com

Domenico Zaino, Jr.
(203) 578-4270; dzaino@carmodylaw.com

Alan H. Bowie
(203) 784-3117; abowie@carmodylaw.com

Stephanie E. Cummings
(203) 575-2649; scummings@carmodylaw.com

Maureen Danehy Cox
(203) 575-2642; mcox@carmodylaw.com

Pamela Elkow
(203) 252-2672; pelkow@carmodylaw.com

Vincent Farisello
(203) 578-4284; vfarisello@carmodylaw.com

Sarah S. Healey
(203) 578-4225; shealey@carmodylaw.com

Lauren M. Hopwood
(203) 784-3104; lhopwood@carmodylaw.com

Timothy S. Klimpl
(203) 252-2683; tklimpl@carmodylaw.com

Howard K. Levine
(203) 784-3102; hlevine@carmodylaw.com

Mark F. Williams
(203) 575-2618; mfwilliams@carmodylaw.com

Sherwin M. Yoder
(203) 784-3107; syoder@carmodylaw.com

Ann H. Zucker
(203) 252-2652; azucker@carmodylaw.com