If a Virginia first responder catches COVID-19 at work, are they covered by workers' compensation and the Line of Duty Act?

Plain-English summary

Two months into the COVID-19 emergency, Virginia Beach Sheriff Ken Stolle asked the AG four questions about workers' compensation and Line of Duty Act coverage for first responders who get sick from on-the-job COVID-19 exposure. The AG's answers, summarized:

1. Workers' compensation covers a first responder who becomes ill from a work-related COVID-19 exposure, on the same liberal-construction principles the Act always uses for occupational illnesses.
2. If COVID-19 is treated as an upper respiratory disease, it falls within the § 65.2-402(A) statutory "heart and lung" presumption, but that presumption only covers a limited group: volunteer or salaried firefighters, plus Department of Emergency Management hazardous-materials officers. Most police officers, sheriffs' deputies, and EMTs do not get the respiratory-disease presumption.
3. The burden of proof depends on whether a presumption applies. With a presumption, the claimant must produce prima facie evidence to trigger it, after which the employer bears the burden to rebut. Without a presumption, the burden is preponderance of evidence (for injuries-by-accident and § 65.2-400 occupational diseases) or clear-and-convincing (for § 65.2-401 ordinary diseases of life).
4. LODA can cover a first responder's death from COVID-19, but the analysis is fact-specific. LODA does not say "first responder," it lists specific job categories, and it incorporates presumptions from §§ 27-40.1, 51.1-813, and 65.2-402.

The AG also points out (without prescribing) that the General Assembly could create a broader COVID-19 presumption applicable to all first responders, and notes contemporaneous legislation in Connecticut, Maryland, and Delaware.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia's Workers' Compensation Act (§§ 65.2-100 to -1206) covers four pathways for COVID-19 claims: (1) injury by accident; (2) occupational disease under § 65.2-400; (3) compensable ordinary disease of life under § 65.2-401; and (4) presumptive claim under § 65.2-402. The Act is remedial and is liberally construed in favor of injured workers, but does not cover every medical condition.

The "heart and lung" presumption is § 65.2-402(A). It treats respiratory diseases that disable or kill firefighters or DEM hazmat officers as occupational diseases suffered in the line of duty, unless rebutted by a preponderance of competent evidence. The presumption is grounded in the General Assembly's recognition that the causes of pulmonary and cardiac disease are often unknown, as the Supreme Court of Virginia explained in Fairfax Cty. Fire & Rescue Servs. v. Newman, 222 Va. 535 (1981).

If COVID-19 is an upper respiratory disease, it fits the textual category, but the statute's coverage is narrow. Most police officers, deputies, and EMTs are not within the § 65.2-402(A) group. They can still recover under the other Act pathways, but without the presumption.

The Line of Duty Act (§§ 9.1-400 to -408) provides death-and-disability benefits to a specifically listed class of public-safety personnel. It does not use the phrase "first responder." It incorporates the presumptions in §§ 27-40.1 (firefighter respiratory), 51.1-813 (heart disease and hypertension), and 65.2-402 (the workers'-comp presumptions discussed above). Eligibility depends on whether the decedent fits a listed job category and whether the death occurred in the line of duty as defined in § 9.1-400 (an action obligated or authorized by rule, regulation, condition of employment or service, or law).

The AG references prior legislative action in this area: § 65.2-406(A)(5) extends the statute of limitations for diseases attributable to Pentagon-rescue efforts after September 11, 2001. The Joint Legislative Audit and Review Commission's 2019 report inventoried the existing presumptions framework.

Common questions

Q: I'm a Virginia deputy. I caught COVID-19 from a person I arrested. Am I covered?
A: Per this 2020 opinion, if you can show the exposure was work-related, you have a compensable illness under the Workers' Compensation Act. You probably do not get the § 65.2-402(A) presumption (which covers firefighters and DEM hazmat officers, not most law enforcement). You would proceed under § 65.2-400 (occupational disease, preponderance burden) or § 65.2-401 (ordinary disease of life, clear-and-convincing burden).

Q: I'm a firefighter. Same question.
A: You are within the limited group covered by § 65.2-402(A). If COVID-19 is treated as a respiratory disease and you can produce prima facie evidence of both the disease and a disability or death linked to it, the presumption shifts the burden to your employer to rebut.

Q: How does "preponderance" differ from "clear and convincing"?
A: Preponderance means more likely than not (about 51% confident). Clear and convincing is a higher bar, the evidence must produce a firm belief in the truth of the claim, somewhere between preponderance and beyond a reasonable doubt. The Act applies the higher standard to "ordinary diseases of life" under § 65.2-401.

Q: My spouse, a Virginia firefighter, died of COVID-19. Are we eligible for LODA?
A: Possibly. Eligibility under LODA requires that the decedent fit the listed job categories, the death occurred in the line of duty as defined in § 9.1-400, and you meet LODA's definitions of "eligible dependent" or "eligible spouse." LODA incorporates the presumptions in §§ 27-40.1, 51.1-813, and 65.2-402. As the opinion notes, the analysis is highly fact-specific. Work with a workers' compensation or LODA attorney.

Q: Could Virginia have created a COVID-specific presumption for all first responders?
A: The AG explicitly states the General Assembly could create such a presumption and mentions contemporaneous legislation in other states. Whether Virginia did so afterward is outside the scope of this 2020 opinion and any later legislative action should be verified before relying on it.

Q: What about EMTs and EMS workers?
A: The Act's § 65.2-104 defines "first responder" only for purposes of certain coverage during a declared state of emergency; it pulls in § 65.2-101's "employee" definition. EMTs employed by state or local government generally have workers' compensation coverage, but the § 65.2-402(A) presumption (firefighters and DEM hazmat officers only) typically does not extend to them.

Citations and references

Statutes:

• Va. Code §§ 9.1-400 to -408 (Line of Duty Act)
• Va. Code § 27-40.1 (Firefighter respiratory presumption)
• Va. Code § 51.1-813 (Heart disease and hypertension presumption)
• Va. Code §§ 65.2-100 to -1206 (Workers' Compensation Act)
• Va. Code § 65.2-400 (Occupational diseases)
• Va. Code § 65.2-401 (Ordinary diseases of life)
• Va. Code § 65.2-402 (Respiratory presumption)
• Va. Code § 65.2-406 (Statute of limitations)

Cases (all Virginia state courts):

• Henderson v. Central Tel. Co., 233 Va. 377, 355 S.E.2d 596 (1987) (Virginia Supreme Court)
• E.I. DuPont de Nemours & Co. v. Eggleston, 264 Va. 13, 563 S.E.2d 685 (2002) (Virginia Supreme Court)
• Merillat Industries, Inc. v. Parks, 246 Va. 429, 436 S.E.2d 600 (1993) (Virginia Supreme Court)
• Fairfax Cty. Fire & Rescue Servs. v. Newman, 222 Va. 535, 281 S.E.2d 897 (1981) (Virginia Supreme Court)
• Tomes v. James City Cty. Fire, 39 Va. App. 424, 573 S.E.2d 312 (2002) (Virginia Court of Appeals)
• Bass v. City of Richmond Police Dep't, 258 Va. 103, 515 S.E.2d 557 (1999) (Virginia Supreme Court)
• Central State Hosp. v. Wiggers, 230 Va. 157, 335 S.E.2d 257 (1985) (Virginia Supreme Court)
• Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 337 S.E.2d 307 (1985) (Virginia Court of Appeals)
• Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 525 S.E.2d 55 (2000) (Virginia Court of Appeals)
• Lindenfeld v. City of Richmond Sheriff's Office, 25 Va. App. 775, 492 S.E.2d 506 (1997) (Virginia Court of Appeals)
• S. Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958) (Virginia Supreme Court)

Pending or contemporaneous legislation referenced:

• Safeguarding America's First Responders Act of 2020, S. 3607, 116th Cong. (federal, contemporaneous)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2020/20-020-Stolle-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 22, 2020

The Honorable Ken Stolle
Sheriff, City of Virginia Beach
Post Office Box 6098
Virginia Beach, Virginia 23456-9073

Dear Sheriff Stolle:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions regarding Virginia Workers' Compensation Act ("Act")[1] and Line of Duty Act ("LODA")[2] issues resulting from the COVID-19 pandemic. Specifically, you ask:

1. If a first responder becomes ill from COVID-19 from an exposure at work, is it a compensable illness under the Workers' Compensation Act?
2. If COVID-19 is an upper respiratory disease, does it fall under the heart and lung presumption of the Act for first responders?
3. If the answers to those questions are yes, what is the burden of proof and who does it fall on?
4. If a first responder dies as a result of COVID-19 or complications from COVID-19, does that first responder and their survivors qualify for Line of Duty Act benefits?

Response

A first responder[3] currently covered by workers' compensation can receive benefits under the Act. If he or she becomes ill from a work-related exposure of COVID-19, such illness is likely compensable. If COVID-19 is an upper respiratory disease, it is my opinion that it will fall within the presumption for respiratory diseases for those first responders entitled to the presumption. The burden of proof in any particular case depends both on the nature of the claim of the first responder and the nature of the work of that first responder. Similarly, the application of LODA to the death of a first responder from COVID-19 will be highly fact-specific.

Applicable Law and Discussion

Your first question is: If a first responder becomes ill from COVID-19 from an exposure at work, is it a compensable illness under the Workers' Compensation Act?

The Virginia Workers' Compensation Act provides certain defined benefits to employees to compensate them for injuries suffered as a result of their employment.[4] The Act is remedial and should be liberally construed in favor of the injured worker in order to advance its beneficial purposes.[5] However, the Act does not provide relief from all medical conditions or ailments.[6]

There is no precise definition of "first responder" in the Act. Accordingly, for this analysis, it is assumed that the relevant employees are police officers, sheriffs' deputies, firefighters, and emergency medical technicians who are employed by state or local government entities and covered by workers' compensation programs.

Most claims under the Act stem from work-related accidental injuries, but some involve illnesses acquired through employment. Your question states that the first responder is diagnosed with COVID-19 from an exposure at work while performing official duties. Under that scenario, a first responder covered by workers' compensation will have suffered a compensable illness under the Act.

Of course, whether any particular exposure qualifies as work-related will depend on the facts of each claim.[7] Additionally, determining where and when someone contracts COVID-19 during this global pandemic presents unique challenges, which makes the question about whether a presumption could be created especially relevant.

Your second question is: If COVID-19 is an upper respiratory disease, does it fall under the heart and lung presumption of the Act for first responders?

Virginia Code § 65.2-402 sets forth a statutory presumption with respect to respiratory diseases for certain first responders, which you have identified as the "heart and lung presumption." In enacting this statute, the General Assembly recognized that the causes of pulmonary and cardiac diseases are often unknown, and that the conclusion that a "fire fighter who contracts a respiratory disease after he has started work suffers from an occupational disease is a reasonable and logical deduction."[8] That statute provides, in part:

A. Respiratory diseases that cause (i) the death of volunteer or salaried firefighters or Department of Emergency Management hazardous materials officers or (ii) any health condition or impairment of such firefighters or Department of Emergency Management hazardous materials officers resulting in total or partial disability shall be presumed to be occupational diseases, suffered in the line of duty, that are covered by this title unless such presumption is overcome by a preponderance of competent evidence to the contrary.[9]

If COVID-19 is an upper respiratory disease, it is my opinion that it qualifies as a respiratory disease for purposes of Virginia Code § 65.2-402(A). However, by its terms this statutory presumption applies only to a limited class of first responders under certain circumstances and, therefore, would not have broad applicability to all or most of the first responders whose official duties regularly place them at far greater risk of contracting COVID-19 than the general public following social distancing guidelines.

Your third question is: If the answers to those questions are yes, what is the burden of proof and who does it fall on?

If a first responder has the benefit of a presumption, he or she has the initial burden of producing evidence to trigger the presumption. Generally, that requires evidence of the necessary disease, and evidence of disability or death caused by the disease, which establishes the claimant's prima facie case.[10] Once the presumption is triggered, the burden shifts to the employer to rebut the presumption. Typically, the employer must both prove that the disease was not caused by the employment and also identify a non-work-related cause.[11]

If the claimant does not have the benefit of a presumption, the burden of proof depends on the nature of the claim. For an injury by accident, the claimant must prove by a preponderance of the evidence that he suffered an injury by that accident.[12] The same holds true for occupational diseases under Virginia Code § 65.2-400, the claimant must prove his case by a preponderance of the evidence.[13] For ordinary diseases of life under Virginia Code § 65.2-401, the claimant must prove all elements of the claim by clear and convincing evidence.[14]

Your second and third questions point to a more fundamental question, which is whether a presumption could be created that would benefit police officers, sheriffs' deputies, firefighters, emergency medical technicians, and other first responders who contract COVID-19 because the nature of their duties place them at greater risk for contracting the disease. The answer to that question is yes; such a presumption could indeed be created.

There are a number of presumptions that exist in the area of workers' compensation. Some are set out by statute, such as the heart and lung presumption you identify.[15] The Joint Legislative Audit and Review Commission (JLARC) recently completed a report outlining a number of such presumptions applicable to various public safety personnel.[16] Others are created through case law, such as the presumption that an accident arose in the course of employment when an employee is found dead as the result of an accident at his place of work.[17]

Without question, the General Assembly could create a presumption applicable to first responders who contract COVID-19. There is currently pending legislation in Connecticut, Maryland, and Delaware, among other states, to accomplish this.[18] Some in Virginia are advocating for a special session of the General Assembly to address issues specific to the COVID-19 pandemic.[19] It is clear that this issue in these circumstances could be addressed at such a session. This would not be unprecedented. Following the terrorist attacks of September 11, 2001, Virginia Code § 65.2-406 was amended to extend the statute of limitations for diseases directly attributable to the rescue and relief efforts at the Pentagon to two years after a diagnosis of the disease is first communicated to the employee.[20]

Your fourth question is: If a first responder dies as a result of COVID-19 or complications from COVID-19, does that first responder and their survivors qualify for Line of Duty Act (LODA) benefits?

LODA has a complex definition for "deceased person," and not all first responders will qualify. LODA does not mention first responders, but applies to specific classifications of employees.[21] LODA also incorporates presumptions from other areas of the Code of Virginia.[22] Not all first responders will be eligible for these presumptions. As with the other questions you posed, the analysis of a particular claim, even with any applicable presumptions, is highly fact-specific.

Therefore, it is my opinion that, if a first responder dies as a result of COVID-19, he and his survivors will qualify for LODA benefits if they meet the eligibility criteria, including satisfying the definitions in LODA of "deceased person," "eligible dependent" and "eligible spouse," and his death occurred in the line of duty as defined in LODA,[23] including any of the presumptions provided by Virginia Code §§ 27-40.1,[24] 51.1-813,[25] and 65.2-402. The General Assembly could elect to address COVID-19 in the context of LODA directly through legislation. Notably, there is currently legislation pending in the U.S. Congress to do this with respect to related federal benefits.[26]

Conclusion

I share your concern for the Commonwealth's first responders in the face of the COVID-19 pandemic. It is my opinion that workers' compensation is available for covered first responders who become ill from work-related exposures. If COVID-19 is an upper respiratory disease, then it will fall within the presumption created under Virginia Code 65.2-402(A). The burden of proof for any particular first responder will depend on the specifics of his or her case, but not all first responders will benefit from the presumption you identified. Any claim will depend on the facts of that particular case, and this is also true for any determination of LODA benefits.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. §§ 65.2-100 to -1206.

2. VA. CODE ANN. §§ 9.1-400 to -408.

3. Virginia Code § 65.2-104 provides for certain coverage for "first responders" during a declared state of emergency, but states only that "[f]or purposes of this section, 'first responder' shall include any person referenced in subdivision 11 of the definition of 'employee' in § 65.2-101 who provides emergency services" during the emergency. There is no precise definition of "first responder" in the Act.

4. See Henderson v. Central Tel. Co., 233 Va. 377, 382, 355 S.E.2d 596, 599 (1987).

5. E.I. DuPont de Nemours & Co. v. Eggleston, 264 Va. 13, 17, 563 S.E.2d 685, 687 (2002).

6. Merillat Industries, Inc. v. Parks, 246 Va. 429, 433, 436 S.E.2d 600, 602.

7. The various mechanisms under which a claim could arise are (1) an injury by accident, (2) an occupational disease under Virginia Code § 65.2-400, (3) a compensable ordinary disease of life under Virginia Code § 65.2-401, or (4) a presumptive claim under Virginia Code § 65.2-402.

8. Fairfax Cty. Fire & Rescue Servs. v. Newman, 222 Va. 535, 540, 281 S.E.2d 897, 900 (1981).

9. VA. CODE ANN. § 65.2-402(A).

10. Tomes v. James City Cty. Fire, 39 Va. App. 424, 431-32, 573 S.E.2d 312, 316 (2002).

11. Bass v. City of Richmond Police Dep't, 258 Va. 103, 112, 515 S.E.2d 557, 561-62 (1999).

12. Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257, 258 (1985).

13. Virginia Dep't of State Police v. Talbert, 1 Va. App. 250, 253, 337 S.E.2d 307, 308 (1985).

14. VA. CODE ANN. § 65.2-401; Great E. Resort Corp. v. Gordon, 31 Va. App. 608, 612, 525 S.E.2d 55, 57 (2000); Lindenfeld v. City of Richmond Sheriff's Office, 25 Va. App. 775, 784, 492 S.E.2d 506, 510 (1997).

15. VA. CODE ANN. § 65.2-402.

16. See JOINT LEGISLATIVE AUDIT AND REVIEW COMMISSION, VIRGINIA'S WORKERS' COMPENSATION SYSTEM AND DISEASE PRESUMPTIONS (REPORT TO THE GOVERNOR AND THE GENERAL ASSEMBLY OF VIRGINIA), at Table C-1 (Dec. 16, 2019).

17. S. Motor Lines Co. v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958).

18. Russell Gold and Leslie Scism, States Aim to Expand Workers' Compensation for Covid-19, WALL ST. J. (Apr. 27, 2020), https://www.wsj.com/articles/states-aim-to-expand-workers-compensation-for-covid-19-11588011257.

19. Alan Suderman and Sarah Rankin, Lawmakers vote to delay wage hike, raises because of virus, RICHMOND TIMES DISPATCH (Apr. 22, 2020), https://www.richmond.com/news/virginia/ap/lawmakers-vote-to-delay-wage-hike-raises-because-of-virus/article_e720c263-8aa5-59ac-bcab-00d87b4343b5.html.

20. VA. CODE ANN. § 65.2-406(A)(5).

21. For example, law enforcement officers and members of recognized fire companies and rescue squads are eligible under LODA. A full list is located in the Virginia Line of Duty Act Participant Guide, available at https://www.valoda.org/pdfs/loda-participant-guide.pdf.

22. LODA incorporates presumptions from Virginia Code §§ 27-40.1, 51.1-813, and 65.2-402. VA. CODE ANN. § 9.1-400.

23. LODA defines "line of duty" as "any action the deceased or disabled person was obligated or authorized to perform by rule, regulation, condition of employment or service, or law." VA. CODE ANN. § 9.1-400.

24. Virginia Code § 27-40.1 creates a rebuttable presumption, outside of the Virginia Workers' Compensation Act, that respiratory diseases suffered by listed firefighters occurred in the line of duty, subject to certain requirements.

25. Virginia Code § 51.1-813 creates a presumption for hypertension and heart disease.

26. The Safeguarding America's First Responders Act of 2020, S. 3607, 116th Cong.