By: Zaffirini S.B. No. 612
A BILL TO BE ENTITLED
AN ACT
relating to the eligibility of school district employees for
workers' compensation benefits for coronavirus disease (COVID-19)
and payment of those benefits.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 408, Labor Code, is
amended by adding Section 408.009 to read as follows:
Sec. 408.009. PRESUMPTION OF COMPENSABILITY OF CORONAVIRUS
DISEASE (COVID-19) FOR SCHOOL EMPLOYEES. (a) In this section,
"School employee" means a person who receives compensation for
service performed, other than as an independent contractor, for a
school district.
(b) A school employee, who suffers from coronavirus disease
(COVID-19) on or after February 1, 2020, resulting in disability or
death, is presumed to have contracted the disease during the course
and scope of employment as a school employee if the employee:
(1) interacts with a student or a school district
employee who is later diagnosed with coronavirus disease; and
(2) contracts the disease not later than the 14th day
following the date that the employee interacted or came in contact
with the student or school district employee diagnosed with the
disease.
SECTION 2. Subchapter A, Chapter 408, Labor Code, is
amended by adding Section 408.010 to read as follows:
Sec. 408.010. PRESUMPTION REBUTTABLE. (a) A presumption
under Section 408.009 may be rebutted through a showing by a
preponderance of the evidence that a risk factor, accident, hazard,
or other cause not associated with the individual's service as a
school employee was a substantial factor in bringing about the
individual's disease or illness, without which the disease or
illness would not have occurred.
(b) A rebuttal offered under this section must include a
statement by the person offering the rebuttal that describes, in
detail, the evidence that the person reviewed before making the
determination that a cause not associated with the individual's
service as a school employee was a substantial factor in bringing
about the individual's disease or illness, without which the
disease or illness would not have occurred.
(c) In addressing an argument based on a rebuttal offered
under this section, an administrative law judge shall make findings
of fact and conclusions of law that consider whether a qualified
expert, relying on evidence-based medicine, stated the opinion
that, based on reasonable medical probability, an identified risk
factor, accident, hazard, or other cause not associated with the
individual's service as a school employee was a substantial factor
in bringing about the individual's disease or illness, without
which the disease or illness would not have occurred.
SECTION 2. Section 409.021(a-3), Labor Code, is amended to
read as follows:
(a-3) An insurance carrier is not required to comply with
Subsection (a) if the claim results from an employee's disability
or death for which a presumption is claimed to be applicable under
Section 408.009 of this code or Subchapter B, Chapter 607,
Government Code, and, not later than the 15th day after the date on
which the insurance carrier received written notice of the injury,
the insurance carrier has provided the employee and the division
with a notice that describes all steps taken by the insurance
carrier to investigate the injury before the notice was given and
the evidence the carrier reasonably believes is necessary to
complete its investigation of the compensability of the injury. The
commissioner shall adopt rules as necessary to implement this
subsection.
SECTION 2. Section 409.022(d), Labor Code, is amended to
read as follows:
(d) In this subsection, the terms "emergency medical
technician," "firefighter," and "peace officer" have the meanings
assigned by Section 607.051, Government Code. The term "school
employee" has the meaning assigned by Section 408.009. In addition
to the other requirements of this section, if an insurance
carrier's notice of refusal to pay benefits under Section 409.021
is sent in response to a claim for compensation resulting from an
emergency medical technician's, a firefighter's, or a peace
officer's disability or death for which a presumption is claimed to
be applicable under Subchapter B, Chapter 607, Government Code, or
from a school employee's disability or death for which a
presumption is claimed to be applicable under Section 408.009,
Labor Code, the notice must include a statement by the carrier that:
(1) explains why the carrier determined a presumption
under that subchapter does not apply to the claim for compensation;
and
(2) describes the evidence that the carrier reviewed
in making the determination described by Subdivision (1).
SECTION 3. Section 415.021(c-2), Labor Code, is amended to
read as follows:
(c-2) In determining whether to assess an administrative
penalty involving a claim in which the insurance carrier provided
notice under Section 409.021(a-3), the commissioner shall consider
whether:
(1) the employee cooperated with the insurance
carrier's investigation of the claim;
(2) the employee timely authorized access to the
applicable medical records before the insurance carrier's deadline
to:
(A) begin payment of benefits; or
(B) notify the division and the employee of the
insurance carrier's refusal to pay benefits; and
(3) the insurance carrier conducted an investigation
of the claim, applied the statutory presumptions under Section
408.009 of this code or Subchapter B, Chapter 607, Government Code,
and expedited medical benefits under Section 504.055.
SECTION 4. (a) Except as otherwise provided by this
section, Section 408.009, Labor Code, as added by this Act, applies
only to a claim for workers' compensation benefits based on an
injury that occurs on or after the effective date of this Act. A
claim based on an injury that occurs before that date is governed by
the law as it existed on the date the injury occurred, and the
former law is continued in effect for that purpose.
(b) Notwithstanding Section 410.169 and 410.205, Labor
Code, or any other law, a school employee whose COVID-19 injury
occurred on or after February 1, 2020, but before the effective date
of this Act, and whose claim was subsequently denied may request in
writing that the insurance carrier reprocess the claim on or after
the effective date of this Act, but not later than six months after
the effective date of this Act, and the changes in law made by this
Act apply to that claim.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2021.