The Honorable Michael Moore, Senate Chair
The Honorable Harold Naughton, Jr., House Chair
Joint Committee on Public Safety and Homeland Security
State House, Boston

Testimony on S. 2602 and H. 4611 via Electronic Submission

Dear Chair Moore, Chair Naughton, and Members of the Committee,

On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association is writing to submit electronic testimony for S. 2602 and H. 4611, An Act relative to emergency hazard health duty. These measures are before your committee for consideration.

1. As we face an unprecedented public health crisis due to the COVID-19 pandemic, municipal leaders in every corner of Massachusetts fully embrace the goal of preserving the health and safety, medical coverage, and sick leave of all our courageous employees serving on the front line in the battle to protect the public.

Cities, towns and the state employ more than 300,000 public safety and health professionals, including police and fire personnel, corrections officers, dispatchers, emergency medical technicians, paramedics and nursing professionals, in addition to innumerable individuals who will be employed and considered first responders. The brunt of the COVID-19 response is being borne at the local level, and we appreciate the Committee’s full consideration of the local government position as to how we can ensure protection and full benefits for all first responders in a financially sustainable way that will allow our communities to finance ongoing operations and essential services during and after the emergency.

2. The problem: presumption legislation would trigger two statutes that would add unnecessary costs and administrative burdens on cities, towns and taxpayers.

S. 2602 and H. 4611 would create a legal presumption requiring a COVID-19 medical condition or incapacity to be automatically determined as work-related. Presumption laws shift the burden on medical causation from the employee to the employer so the injury or illness is “presumed” to be work-related unless rebutted by the weight of the evidence. Overcoming a presumption is very difficult because proof is required that exposures outside work caused the disease. In the case of a pandemic with our current community spread, it would be nearly impossible to prove whether an employee contracted the virus on the job or outside of work.

The problem with creating a work-related presumption as a means of triggering benefits for employees is that Massachusetts has a unique injured-on-duty law for police and fire personnel, and a separate workers’ compensation system for all other employees. Using these laws to ensure that first responders and others are made whole in terms of leave time and coverage of all medical costs would impose massive, unaffordable and unnecessary new expenses on cities and towns. We respectfully and urgently ask that you do not create a presumption, but rather draft language that more directly and affordably ensures that all COVID-19 related leave time and medical expenses for these employees are covered.

M.G.L. Chapter 41, Section 111F provides injured-on-duty leave for police and fire personnel at 100% regular pay for the period of the incapacity. Accrued paid sick leave is not impacted. All other employees, including non-public-safety first responders included in these two bills, fall under M.G.L. Chapter 152, the state’s workers’ compensation statute, which provides lesser wage benefits. Under S. 2602 and H. 4611, employees would, therefore, be treated differently with respect to their COVID-19 claims. Further, requiring cities and towns to administer benefits through either of these two systems would impose complex administrative burdens on local officials, most of whom are operating with reduced HR and administrative capacity due to the ongoing emergency.

3. Full medical coverage is already guaranteed: existing health insurers have pledged to pay 100% of all COVID-19 related medical expenses, and forcing cities and towns to use the injured-on-duty and workers’ compensation statutes would take employees out of their health plans and compel taxpayers to pay for medical costs separately, a totally unnecessary double-hit on municipal budgets.

Claims under Section 111F for police and fire personnel or under Chapter 152 for other employees trigger statutes that require indemnification of all medical expenses related to an occupational injury, a system that is administered outside of traditional health insurance coverage, with payments to other third parties (either directly to the health care provider, to some other carrier, or a reimbursement to the employee).

Cities and towns have already paid for employee health insurance plans, including those for first responders and all municipal employees. And, as you know, health insurance providers have already pledged to cover all medical costs related to COVID-19, and are waiving all employee cost shares, including co-pays and deductibles. In other words, every local and state government employee, including all first responders, will already receive 100% coverage for COVID-19 related medical care through existing health plans that have already been funded by cities, towns and the state.

However, imposing a COVID-19 presumption on municipalities would require them to pay for all medical costs outside of their existing employee health plans, directly from the municipal treasury. This makes NO FINANCIAL SENSE and would exact a tremendous financial burden on municipalities while municipal revenues are falling off a cliff due to COVID-19.

4. The solution: create a COVID-19 paid sick leave program for all first responders covered by S. 2602 and H. 4611 to ensure that COVID-19 related leave is separate, preserving employees’ regular earned sick leave balances, and allowing existing employee health plans to cover all medical costs.

To avoid the deep fiscal and administrative problems with presumption legislation, the best solution is to create a temporary COVID-19 paid sick leave program to provide fully paid leave time for those employees who are required to follow municipal or state protocols to quarantine or self-isolate, and to receive medical treatment and the time to recover from COVID-19 during the public health emergency. This would ensure full compensation for first responders during any COVID-19 related leave, maintain all existing sick leave balances, and preserve scarce municipal financial resources that are needed to address the crisis. Similar to what the federal government recently rolled out under the Families First Coronavirus Response Act (FFCRA), first responders in Massachusetts would be given paid sick leave in addition to their regular accrued sick leave benefits to use for COVID-19 quarantine, treatment and recovery.

Because FFCRA requires employees to use the mandated 80 hours of paid sick leave afforded under the act first, before using any other accrued paid leave or additional paid sick leave, public safety first responders in Massachusetts who work for municipalities that do not exempt public safety under FFCRA’s paid sick leave provisions would first access and use their FFCRA leave, and then access the newly-awarded COVID-19 paid sick leave to cover any additional time that is required. For municipalities that exempt public safety under FFCRA, sick leave for COVID-19 related quarantine or illness would be accessed from the beginning. Another advantage to this approach is that creating a COVID-19 paid sick leave program would open the possibility that federal funding might flow to cities and towns through future federal financial stabilization packages. Such financial stabilization reimbursement would be less likely to occur, if at all, under a presumption/injured-on-duty leave approach.

A COVID-19 paid sick leave program would also permit municipal employers to treat all employees on the front line equitably, instead of compensating police and fire personnel differently under Section 111F. Equitable and similar treatment of employees is extremely important to municipal leaders.

Finally, managing a COVID-19 paid sick leave program would be much less administratively burdensome than managing injured-on-duty leave, particularly where different workers’ compensation laws are invoked and medical coverage is routed through medical indemnification statutes (Section 100 of Chapter 41 and Section 30 of Chapter 152). This remains particularly important while city and town halls are forced to work remotely, with reduced staff capacity.

Summary

Local officials and the MMA are deeply grateful for the service of all first responders and health professionals, and are committed to ensuring that these public servants receive 100% of their pay, receive all necessary medical care at no personal cost, and are made whole by preserving all earned sick leave benefits. On behalf of city and town leaders across Massachusetts, we ask you to achieve this in a fiscally responsible way, with equity among all first responders and health professionals who are on the front lines of COVID-19. Please reject the creation of a presumption, as our IOD and WC statutes would then impose extremely costly medical expenditures by municipalities, over and above insurance premiums that have already been paid.

This is unaffordable for cities and towns, and would also create inequities among our highly valued public employees. Communities do not have the resources to pay these unnecessary costs, and this would deplete resources that are needed to maintain essential services to the public.

If you have any questions or need additional information, please do not hesitate to contact me or Senior Legislative Analyst Lisa Adams at ladams@mma.org or 617-721-3676 at any time.

Thank you very much for your dedication and service during this unprecedented emergency.

Sincerely,

Geoffrey C. Beckwith
Executive Director & CEO

cc: His Excellency Charles Baker, Governor of the Commonwealth
The Honorable Karyn Polito, Lieutenant Governor of the Commonwealth
The Honorable Karen Spilka, Senate President
The Honorable Robert DeLeo, Speaker of the House
The Honorable Michael Rodrigues, Chair, Senate Committee on Ways & Means
The Honorable Aaron Michlewitz, Chair, House Committee on Ways & Means