State business lobby sought changes to workers' compensation protections for first responders in relief bill

Molly Beck
Milwaukee Journal Sentinel

MADISON - Republican legislative leaders at the last minute changed workers' compensation protections for first responders in the state's coronavirus relief package after the state's chamber of commerce asked them to, according to state records.

The change, which was made after lawmakers already were on the floor in the state Assembly chamber last week, scaled back protections in the bill before them, requiring first responders infected with the virus to show they were exposed to someone with a confirmed case of the virus at work before they could receive workers' compensation.

Advocates for first responders say in many cases that's an impossible standard to meet for people who must interact closely with the public to do their jobs and can become infected without knowing it for weeks.

"If you need to make an arrest, you can't do that from six feet away," Attorney General Josh Kaul said in an interview. "To re-create all the steps needed to identify the person (you contracted the virus from) is very onerous on law enforcement officers and they may not even be able to do it if that person has never been tested."

The move was made after a lobbyist for the Wisconsin Manufacturers and Commerce asked staff for Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos to either remove the protections or narrow them because of the potential fiscal effect on local governments and employers, according to records related to the bill amendment's drafting. 

The original proposal would have created a presumption that a worker with a positive test or diagnosis caught the virus while working, without requiring proof the worker was exposed on the job.

"We thought the original language was, frankly, a little too open-ended by creating an absolute presumption," WMC lobbyist Chris Reader said in an interview. "There was no evidence required like current law requires."

Reader, who sits on the Wisconsin Worker's Compensation Advisory Council, said creating a new presumption in state law that assumes workers were injured, or in this case infected, on the job is an improvement from current law for workers that could result in higher costs to local governments and employers with no way to fund them.

The bill did not provide a mechanism for the state to help pay for the additional costs. 

The added costs could stress the workers' compensation system through either budget shortfalls or increases in insurance premiums, he said. 

Lawmakers in Illinois, Michigan and Minnesota have made this change, however, without requiring the evidence Wisconsin's new law does. In Minnesota, at least, how to pay for the additional costs has been a point of contention since the new provision passed. 

Wisconsin's provision applies to law enforcement officers, firefighters, emergency medical staff and health care workers who care for coronavirus patients. 

Jim Palmer, executive director of the Wisconsin Professional Police Association, said the way the new state law was drafted leaves first responders in Wisconsin effectively without any protections. 

"When an officer hurts their knee or incurs a physical injury in the line of duty, that's pretty easy to prove — we can demonstrate 'I was wrestling with this suspect or chasing him,'" Palmer said. "Communicable diseases are nearly impossible to substantiate."

Palmer said that's why other states have created a presumption of injury on the job related to the coronavirus, which can be contracted from people without any symptoms at all.

Just last week, the Milwaukee Police Department said 18 officers had the virus. 

"It eviscerates any notion that it’s a presumption and I think it’s pretty clear that’s the design," Palmer said of the last-minute change in Wisconsin's relief bill. 

Reader said without the new changes, an officer doesn't even have hope of getting coverage.

"Under current law, that officer would never have a chance to get coverage," he said.

But the new law resembles the standards in the old law, making it unclear how differently workers who contract the virus will be treated.

Under the new law, the person "must have been exposed to others with confirmed cases of COVID-19 in the course of employment," according to a nonpartisan Legislative Fiscal Bureau analysis.

Under the old law, "for coronavirus to be covered by worker's compensation it must be established that contracting the disease was work-related," according to Department of Workforce Development guidance. 

Wisconsin lawmakers waited until they had a handful of days to pass legislation aimed at providing relief before they would have missed out on hundreds of millions in federal aid. 

That meant the relief package was introduced a day before lawmakers took it up, leaving no time for input from the public. 

Reader said under more normal circumstances, such changes to the state's workers' compensation laws would have been vetted by the state Worker's Compensation Advisory Council and included input from employers, employee unions and other stakeholders. 

Matt Becker, chief executive officer for the League of Wisconsin Municipal Mutual Insurance, said the organization that represents 400 cities, villages and special municipal districts is neutral on the change but said he considers the language to be a positive change for first responders.

"It's better than nothing," he said. "From what others have said, it’s not what they would totally like, which is OK."

He said so far, employers haven't seen a big uptick in claims related to the virus, but are concerned about the long-term impact if cases of the virus surge again in the fall. 

Palmer said state lawmakers should have put more priority on creating fewer hurdles for first responders who are more at risk of contracting the disease because of the nature of the jobs than their employers.

"It could be nearly impossible for them to point to a person, the confirmed case from whom they acquired or that they even interacted with someone with a confirmed case," he said. "Nothing in the relief package that is now the law represents a benefit of any kind."

Fitzgerald and Vos did not respond to requests for comment. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.