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.