COVID-19 has provided unique and challenging legal issues. The Longshore and Harbor Workers’ Compensation Act (LHWCA) is no exception. Other than a frequently asked questions page, the Office of Workers’ Compensation Programs has not offered much guidance. In response, Congress has attempted to fill these gaps by introducing legislation to explicitly expand coverage to workers who may have contracted COVID-19.
Longshore and Harbor Workers’ COVID-19 Compensation Act of 2021
On May 11, 2021, Representative Frank J. Mrvan and Representative Bobby Scott introduced H.R. 3114, the Longshore and Harbor Workers’ COVID-19 Compensation Act of 2021 (the Act), a bill to provide benefits authorized under the LHWCA to maritime workers who contract COVID-19.
H.R. 3114 covers any employee between January 27, 2020 and ending January 27, 2023 who is engaged in maritime employment as defined in Section 2 of the LHWCA and is diagnosed with COVID-19, and who carried out duties that required contact with members of the public, co-workers, or other individuals associated with the course of employment. The Act also covers employees, who have not contracted, COVID-19, but, who have only been exposed to COVID-19. It does not cover employment under the Defense Base Act (DBA), the Outer Continental Shelf Lands Act (OCSLA), and employees of Nonappropriated Fund Instrumentalities.
How the Act Impacts Employers and Carriers
One of the biggest issues with a communicable disease, like COVID-19, is causation. In particular, COVID-19 may gestate for 10-14 days before symptoms manifest. During this period, an employee will interact with their co-workers, family, and friends, who will also interact with their co-workers, family, and friends ad infinitum.
H.R. 3114 considers this. In general, a covered employee who provides notice of or files a claim under the LHWCA relating to COVID-19 “shall be conclusively presumed to have an injury arising out of or in the course of employment for the purposes of compensation under the [LHWCA].” The phrase “conclusively presumed” suggests that the rebuttable presumption under Section 20 (a) of the LWHCA does not apply to claims covered under the Act.
Don’t despair, however. H.R. 3114 creates a mechanism for reimbursement. An employer, or carrier, is entitled to reimbursement if it is in compliance with all applicable safety and health guidelines regarding COVID-19, and issued by the Occupational Safety and Health Administration (OSHA). In addition to complying with OSHA regulations, a carrier shall not adjust the experience rating or annual premium based upon the compensation paid by the carrier because of a claim based on COVID-19 exposure.
status of the Act
To date, no action has been taken on the Act. While laudable, the Act would create a number of unintended consequences. The most important of these is the apparent elimination or a rebuttable presumption for a regime more akin to strict liability. An employee would only have to show they have contracted COVID-19 and carried out duties that required contact with the public. Even more extraordinary, an employee would be covered if they were told to stay home because at least one person contacted COVID-19. In this case, the employee does not have to be diagnosed with COVID-19 to be covered. As you can see, this legislation would greatly expand the employer/carrier’s exposure.
 H.R. 3114.
 H.R. 3114 (b).
 H.R. 3114 (b)(2)
 H.R. 3114 (a).
 H.R. 3114 Sec. 3 (a)(2)(A).
 H.R. 3114