The HEROES Act and Potential Impact on Longshore Claims

On May 15, 2020, the House of Representatives passed H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act) with a 208 to 199 vote. The $3 trillion bill, designed to provide economic relief during the COVID-19 pandemic, was sponsored by Representative Nita Lowey (D-NY) and co-sponsored by 11 other Democratic representatives.

Of interest to readers of the Longshore Insider is a portion of the bill that affects the maritime industry, Division L – Families, Workers, and Community Support Provisions, and specifically Title V – COVID-19 Protections under the Longshore and Harbor Workers’ Compensation Act. This bill would amend the Longshore Act in several ways, as a response to the COVID-19 pandemic.

As discussed in a recent Longshore Insider article, in order for compensation to be payable under workers’ compensation law, an employee’s injury must arise out of or in the course of employment. Under Division L, Title V of the HEROES Act, Longshore Act coverage would be extended to an employee who is diagnosed with COVID-19 any time during the period beginning January 27, 2020 and ending February 27, 2022.

• Coverage would also be extended to any employee who is engaged in maritime employment between January 27, 2020 and January 27, 2022 and 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.
• Reimbursement would be processed in the same manner as claims under the War Hazards Compensation Act. However, reimbursements will be paid out of the Special Fund (established in section 44 of the Longshore Act) through appropriated funds.
  
• 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. Additionally, carriers would not be permitted to adjust the experience rating or the annual premium of the employer-based upon the compensation paid by the carrier.
  

Currently, the bill is on the Senate Legislative Calendar, but no further action is expected until early July.

Author’s Note: AEU has provided insight to, and participated in preparing talking points for, two of the larger maritime industry groups, the National Association of Waterfront Employers (NAWE) and Shipbuilders Council of America (SCA), in opposition to this portion of the HEROES Act. In addition to technical issues with how the bill is written and concerns about how the reimbursement would be administered, our main opposition is the expansion of coverage in the Longshore Act that removes the course and scope of employment requirement and also grants coverage to those who may be quarantined without any injury or illness at all. As it currently stands, the Longshore Act is more than capable of addressing COVID-19 as an on-the-job illness, just as any other on-the-job injury or illness.