The Pandemic Heroes Compensation Act (HR 6909) as introduced on May 15 draws heavily from the framework established for the September 11th Victims Compensation Fund. The main objective of the program is to efficiently deliver no-fault compensation to essential workers and their family members who have contracted COVID-19. This presentation provides an overview of the proposal and identifies key risks.

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CBI-PAN-20-20
An Overview and Key Risks
Pandemic Heroes Compensation Act of 2020 (HR 6909)
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Pandemic Heroes Compensation Act
Overview of the Program
The Pandemic Heroes Compensation Act (HR 6909) as introduced on May 15 draws heavily from the framework established for the
September 11th Victims Compensation Fund. The main objective of the program is to efficiently deliver no-fault compensation to
essential workers and their family members who have contracted COVID-19.
The Attorney General appoints a Special
Master to administer the program
The Special Master establishes an office to
assist claimants in submitting claims.
Treasury establishes the
COVID-19 Compensation Fund
Eligible Claimant
Claim Form The Special Master determines compensation on
a “no fault” basis consisting of:
• Economic losses (e.g., medical expenses
and lost wages); and
• Non-economic losses (e.g., pain and
suffering) as limited under program rules.
Awards are reduced by the amount of collateral
sources received or to which the claimant is
entitled. Punitive damages are not permitted.
The Special Master sets attorney fees.
An essential worker who performed work
outside of the residence during any emergency
order or declaration (and any family member
sharing a residence with such a worker) who
has exhibited symptoms consistent with
COVID-19 confirmed by:
• Laboratory testing
• Healthcare provider diagnosis
• Absence of alternate diagnosis
The claimant (or surviving family) submits a
claim form within 5 years after the end of any
emergency order or declaration with
information regarding:
• Harm suffered as a result of COVID-19
• Status of claimant as an essential worker
• Economic and non-economic losses as a
result of COVID-19
• Collateral sources of compensation
Treasury pays the
award and receives
subrogation rights
Compensation Award
The administrative costs of the program
are through the Department of Justice.

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Pandemic Heroes Compensation Act
Penalizing State Workers Compensation Initiatives
Federal awards would be reduced by the amount of “collateral sources” of compensation – particularity from programs set up by the states
to provide prompt relief to essential workers and their families. As detailed in the appendix, many states have opened their state workers
compensation programs to COVID-19 victims – a decision which may unintentionally cost them, their employers and insurers greatly.
Reduction for Collateral Sources
A claimant’s award would be reduced by the amount
of available compensation from “collateral sources.”
Workers Compensation Benefits
Workers compensation benefits are considered a collateral
source under the 9/11Victims Compensation Fund.
COVID-19
Compensation Fund
Workers in States without COVID-
19 presumptions of compensability

Claimants working in states that have not opened
their workers compensation programs to COVID-19
victims would be compensated with federal funds.
Workers in States with COVID-19
presumptions of compensability
Claimants working in states that took action to open
their workers compensation programs to COVID-19
victims would be compensated through a state system.
Early action states would be heavily
penalized for stepping up to assist
stricken essential workers.

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Pandemic Heroes Compensation Act
Complicating the Litigation Landscape
Unlike the Victims Compensation Fund set up after September 11, this proposal appears to leave claimants free to pursue additional
compensation through negligence or other claims in court. Indeed, there may be strong incentives for claimants to do so. The result would
be the unintended tangle of legal rights and obligations obstructing an otherwise efficient path to fairness and finality.
No Bar to Litigation
A decision to file a claim with the September 11
Victims Compensation Fund barred the claimant
from pursuing compensation through the courts.
The Pandemic Heroes Compensation Act does not
require claimants to make any such choice. The
proposal seems to permit a claimant to pursue a
preemptive, parallel or follow on lawsuit as a
strategy to avoid the program’s limitations on
non-economic damages.
Strategic Subrogation
The proposal invests Treasury with the right of subrogation
– meaning it inherits the claimant’s right to recover in court
to the extent of payments made under the program.
Given the absence of any bar to compensated claimants
pursuing their own subsequent lawsuits, claimants could
effectively bring Treasury’s subrogation interest to court
through their own action.
Any successful recovery of Treasury’s share would, of course,
go back Treasury – less a contingency fee due the claimant’s
attorney. Any excess recovery would augment the claimant’s
prior recovery from the fund.

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Appendix
COVID-19 Workers Compensation Presumptions
State First Responders Health Care Providers Essential Workers Rebuttable
Alaska ✓ ✓
Arkansas ✓ ✓ ✓
California ✓ ✓ ✓ ✓
Florida* ✓ ✓ ✓ ✓
Kentucky** ✓ ✓ ✓ ✓
Michigan ✓ ✓
Minnesota ✓ ✓ ✓
Missouri ✓ ✓
New Hampshire ✓ ✓
New Mexico* ✓ ✓
North Dakota** ✓ ✓
Utah ✓ ✓
Washington ✓ ✓
Wisconsin ✓ ✓
*State employees only
**Eligible for modified benefits
The COVID-19 related presumptions or similar modifications to workers compensation claim compensability differ considerably among
the states which have implemented them. In addition to the scope of employees covered by and the ability to rebut the presumption,
variations include the circumstances creating the presumption and the benefits available to covered employees.