Analysis

Synopsis:

 House Bill 268 (HB 268) amends Workers’ compensation to create a presumption that coronavirus disease 2019 is an injury by accident arising out of and in the course of employment for essential employees. HB 268 permits employers to rebut the presumption and defines “essential employee.” HB 268 prohibits workers’ compensation insurers from using coronavirus disease 2018 claims in developing rating plants. Declares an emergency.

Analysis:

 House Bill 268 (HB 268) amends Workers’ compensation to create a presumption that coronavirus disease 2019 is an injury by accident arising out of and in the course of employment for essential employees. HB 268 permits employers to rebut the presumption and defines “essential employee.” HB 268 prohibits workers’ compensation insurers from using coronavirus disease 2018 claims in developing rating plants. Declares an emergency.

SECTION 1. Amends the title of Workers’ Compensation Section 52-1-19 NMSA 1978 (being Laws 1975, Chapter 284, Section 6, as amended) to read INJURY BY ACCIDENT--COURSE OF EMPLOYMENT-- CORONAVIRUS DISEASE 2019—PRESUMPTION.
This section is revised to be lettered and numbered and revised to be gender-neutral. Throughout this section coronavirus disease 2019 caused by the novel coronavirus will be referred to as coronavirus.
Subsection A(1)(b) provides that the contraction of coronavirus shall be included as an injury by accident arising out of and in the course of employment. The inserted (b) follows: 
(b) the contraction of coronavirus disease 2019 caused by the novel coronavirus by any essential employee from the effective date of this 2021 act until January 31, 2023; and 
Subsection B through Subsection D are inserted. 
B. If an essential employee is diagnosed with coronavirus disease 2019 caused by the novel coronavirus (coronavirus), and the essential employee has established that the employer has not strictly complied with the then existent public health orders related to the coronavirus, the condition is presumed to be: 
(1) an accidental injury arising out of and in the course of employment;
(2) reasonably incident to and proximately caused by employment; and 
(3) a disability that is a natural and direct result of the accident. 
C. The presumptions created in Subsection B of this section may be rebutted by a preponderance of evidence in a court of competent jurisdiction establishing that the employee engaged in conduct or activities outside of employment that substantially violated the then existent public health orders related to the coronavirus. 
D. Provides the definition as used in this section of "essential employee"  to mean any public safety employee or school employee or an employee declared to be an essential employee pursuant to a public health order of the governor or the secretary of health; provided that the employee was required to work at the physical location of employment at any time, up to 20 days prior to the diagnosis of coronavirus.

SECTION 2. Amends Insurance Code Section 59A-17-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 304, as amended) MAKING OF RATES--WORKERS' COMPENSATION--RATE CALCULATIONS--RATE CLASSIFICATIONS to insert in Subsection G to prohibit compensation insurers from using coronavirus claims in developing rating plans. The inserted text is:
(2) uses any data related to claims arising from coronavirus disease 2019 for which an injury by accident arising out of and in the course of employment is presumed pursuant to Section 52-1-19 NMSA 1978 in developing a rating plan." 

SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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