Congress made two attempts last year to expand coverage of the Longshore Act to employees diagnosed with or quarantined because of COVID-19. Those proposed amendments would have made COVID-19 claims compensable under the Longshore Act whether or not the exposure was employment-related.
The first attempt, H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act) passed the House but later stalled in the Senate and ended up supplanted by H.R. 1319, the American Rescue Plan Act of 2021. See our previous Longshore Insider article discussing this bill.
The second attempt was to include the Longshore amendments in H.R. 6395, The William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year 2021. However, when the bill became law on January 1, 2021, the Longshore amendments were not included.
A third attempt to expand Longshore Act coverage through amendment is now underway. On May 11, 2021, Congressman Frank Mrvan introduced H.R. 3114, Longshore and Harbor Workers’ COVID-19 Compensation Act of 2021 to the House of Representatives. Chairman of the House Committee on Education and Labor, Congressman Bobby Scott, is one of thirteen co-sponsors of the bill.
Much of the language in the bill is similar to the previous attempts:
- Coverage is extended to any employee who is engaged in maritime employment and is diagnosed with COVID-19 or is “ordered not to return to work by the employee’s employer or by a local, State, or Federal agency because of exposure, or the risk of exposure, to 1 or more individuals diagnosed with COVID-19 in the workplace.”
- Employers or carriers would be entitled to reimbursement of disability benefits, funeral and burial expenses, medical or other related costs for treatment and care, and reasonable and necessary allocated claims expenses.
- To be entitled to reimbursement, an employer would need to be in compliance with all applicable safety and health guidelines and standards that are related to the prevention of occupational exposure to COVID-19.
However, there are some areas of this new attempt that differ from the previous attempts:
- The coverage period is expanded by a year. Coverage begins on January 27, 2020 and now extends to January 27, 2023 rather than January 27, 2022.
- Coverage for employees diagnosed with COVID-19 is narrowed to those that carry out duties that “required contact with members of the public, co-workers, or other individuals associated with the course of employment; or included a risk of exposure to the novel coronavirus.”
- Employees covered under the Defense Base Act, the Outer Continental Shelf Lands Act and the Non-Appropriated Fund Instrumentalities Act are now explicitly excluded.
- Rather than utilizing the Special Fund, a Longshore COVID-19 fund would be created.
- Reimbursement claims would require a compensation order (as described in section 19(e) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 919(e))) that fixes entitlement to benefits.
Even after considering the updates to the bill, this amendment remains troublesome for the maritime industry. Here are three reasons why:
- Utilizing a workers’ compensation system to address illness resulting from communicable diseases, without proof that an employee was infected within the course and scope of employment, is unnecessary. The Longshore Act can address COVID-19 as an on-the-job illness, just as any other on-the-job injury or illness.
- Removing the course and scope requirement is inequitable to employers and carriers and could set the stage for additional communicable diseases, such as the flu, to be deemed compensable under the Longshore Act in the future.
- Granting coverage to those who may be quarantined or ordered not to return to work goes against the basic tenets of workers' compensation law, which is to compensate for employment-related injuries.
It is difficult to predict the chances of the bill prevailing and amending the Longshore Act. Maybe the third time is the charm?
There has not been any further action taken on this bill since its introduction on May 11, 2021.
Author’s Note: AEU has provided insight to, and participated in preparing talking points for, two of the larger maritime industry groups, National Association of Waterfront Employers (NAWE) and Shipbuilders Council of America (SCA), in opposition of this bill.