Alabama Workers' Comp Blawg

Alabama not Likely to Create COVID-19 Presumptions via Executive Order

 

As the COVID-19 pandemic rages on, governors in various states have issued executive orders which purport to create a presumption that COVID-19 is a compensable occupational illness for certain employees. In most states where this has occurred, such presumption is limited to healthcare workers, first responders, and some employees in the public transportation sector. However, Connecticut Governor Ned Lamont just issued an executive order that creates a rebuttable presumption that COVID-19 is a compensable occupational disease for any employee who worked outside the home at the direction of the employer and was diagnosed with COVID-19 and missed work between March 10 and May 20. Connecticut’s order is unique not only because it covers a much broader spectrum of workers, but also because it is retroactive in nature. This of course begs a few questions: Is such an order valid? If so, could Governor Ivey do the same thing in Alabama?

 

Alabama is one of the only states where disputes between employers and employees over workers’ compensation claims are decided by the courts, rather than an administrative body. Over the years, many states have taken workers’ compensation cases out of the courts in favor of administrative proceedings before a board or administrative law judge. Generally, the administrative body that is responsible for the administration of workers’ compensation in those states is part of the executive branch of government. The state legislature actually delegates authority to the executive branch to create an administrative agency responsible for administering workers’ compensation benefits, and those agencies are allowed to promulgate their own rules and regulations. Governors are the head of the executive branch, and therefore have the power (either express or implied) to direct the administrative agencies under their control to act in a certain way. Therefore, in states where disputes between employers and employees are decided by an administrative body, rather than the courts, governors have much more authority to levy what may or may not be considered a compensable illness. Assuming Connecticut is such a state, Governor Lamont’s order may be a permissible exercise of authority under Connecticut law. The biggest question is whether the retroactive nature of the order violates due process.

 

In Alabama, an executive order such as the one issued in Connecticut would not be valid. The Alabama Workers’ Compensation Act was passed by the Alabama legislature, and was codified in the Alabama Code. A key part of the Act vests jurisdiction for determining disputes between employers and employees regarding workers’ compensation benefits solely in the circuit courts. In other words, Alabama has a balanced form of government, where laws are passed by the legislative branch, interpreted by the judicial branch, and the executive branch’s role is one of enforcement only. The governor has no authority to pass laws; nor does she have the authority to tell the courts how to interpret laws that the legislature has passed. Therefore, it is not likely that Governor Ivey will try to implement an executive order similar to that of Governor Lamont.

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About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.