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March 20, 2020 Article

Update on COVID-19 and Maine Workers' Compensation

Maine Workers' Comp Alert

In this uncertain time, Preti Flaherty wants to assure you we are still providing full coverage for your Maine Workers’ Compensation and Longshore legal needs. This update briefly addresses current laws and also touches upon potential occupational disease claims that may develop as a result of COVID-19

The Maine Workers’ Compensation Board has issued an Order that all mediations and conferences will be handled by telephone. Expect all electronic and regular filings to still be mandatory under existing statutes and rules. The current Order indicates hearings, unless otherwise ordered, will be conducted live. We do not expect this standard to continue. The Board will probably set a procedure in place to continue hearings or allow for a remote hearing process. We will keep you updated as we learn more, and you can also receive updates at the Maine Workers’ Compensation Board website.

The Maine Workers’ Compensation Act does contains provisions for occupational disease claims. You may see employees who develop COVID-19 make formal claims under the Act. The Act generally handles occupational disease at 39-A M.R.S.A. Sec. 601-615. Here are important points:

  1. Under Sec. 602 an occupational disease must arise out of and in the course of employment.
  2. Importantly, Sec. 603 goes on to say it must be a “…disease that is due to causes and conditions characteristic of a particular trade, occupation, process or employment…”. This will be key with COVID-19. Was the development of the disease caused by the circumstances of the workplace? Understand certain professions or work environments will be more easily linked. An example would be a hospital.
  3. There may be apportionment of responsibility if an employee has pre-existing conditions that make the occupational disease worse. Sec. 605. An example might be an underlying pulmonary condition.
  4. There is no apportionment against an earlier employer. The standard for occupational disease, under Sec. 606, is that the employer at the time of “last injurious exposure” is responsible for the entire claim.
  5. There may be an affirmative defense under Sec. 607. It may be possible to argue an employee must work under the contributing causes for the occupational disease for a period of not less than 60 days before a claim is valid.

You may also have questions about other Labor or Employment issues due to COVID-19. Preti Flaherty’s Labor and Employment Practice Group is available for advice and is also doing alerts. Here is a link to the most recent.

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