Presumptive Disability Law in Arizona

Presumptive Health Initiative

CODE PART:
Arizona Code
Title 23 Labour
Chapter 6 Workers’ Compensation
Article 1 – Scope of Workers’ Compensation Occupational disease; proximate causation; definition
Title 38 – Public Officers and Employees
Chapter 4 – Compensation and Insurance
Article 5 – Employee Benefits

Arizona Legislative Website

DESCRIPTION:
23-901.01.
Occupational disease; proximate causation; definitions

  1. The occupational diseases as defined by section 23-901, paragraph 13, subdivision (c) shall be deemed to arise out of the employment only if all of the following six requirements exist:
    ( from 23-901-13-c = (c) An occupational disease which is due to causes and conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and not the ordinary diseases to which the general public is exposed, and subject to section 23-901.01.)

    1. There is a direct causal connection between the conditions under which the work is performed and the occupational disease.
    2. The disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment.
    3. The disease can be fairly traced to the employment as the proximate cause.
    4. The disease does not come from a hazard to which workers would have been equally exposed outside of the employment.
    5. The disease is incidental to the character of the business and not independent of the relation of employer and employee.
    6. The disease after its contraction appears to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence, although it need not have been foreseen or expected.
  2. Notwithstanding subsection A of this section and section 23-1043.01,
    1. Any disease, infirmity or impairment of a firefighter’s or peace officer’s health that is caused by brain, bladder, rectal or colon cancer, lymphoma, leukemia or adenocarcinoma or mesothelioma of the respiratory tract and that results in disability or death is presumed to be an occupational disease as defined in section 23-901, paragraph 13, subdivision (c) and is deemed to arise out of employment.
    2. Any disease, infirmity or impairment of a firefighter’s health that is caused by buccal cavity and pharynx, esophagus, large intestine, lung, kidney, prostate, skin, stomach or testicular cancer or non-hodgkin’s lymphoma, multiple myeloma or malignant melanoma and that results in disability or death is presumed to be an occupational disease as defined in section 23-901, paragraph 13, subdivision (c) and is deemed to arise out of employment.
  3. The presumptions provided in subsection B of this section are granted if all of the following apply:
    1. The firefighter or peace officer passed a physical examination before employment and the examination did not indicate evidence of cancer.
    2. The firefighter or peace officer was assigned to hazardous duty for at least five years.
    3. The firefighter or peace officer was exposed to a known carcinogen as defined by the international agency for research on cancer and informed the department of this exposure, and the carcinogen is reasonably related to the cancer.
    4. For the presumption provided in subsection b, paragraph 2 of this section, the firefighter received a physical examination that is reasonably aligned with the national fire protection association standard on comprehensive occupational medical program for fire departments (NFPA 1582).
  4. Subsection B of this section applies to former firefighters or peace officers who are sixty-five years of age or younger and who are diagnosed with a cancer that is listed in subsection B of this section not more than fifteen years after the firefighter’s or peace officer’s last date of employment as a firefighter or peace officer.
  5. Subsection B of this section does not apply to cancers of the respiratory tract if there is evidence that the firefighter’s or peace officer’s exposure to cigarettes or tobacco products outside of the scope of the firefighter’s or peace officer’s official duties is a substantial contributing cause in the development of the cancer.
  6. The presumptions provided in Subsection B of this section may be rebutted by a preponderance of the evidence that there is a specific cause of the cancer other than an occupational exposure to a carcinogen as defined by the international agency for research on cancer.
  7. For the purposes of this section:
    1. “Firefighter” means a full-time firefighter who was regularly assigned to hazardous duty.
    2. “Peace officer” means a full-time peace officer who was regularly assigned to hazardous duty as a part of a special operations, special weapons and tactics, explosive ordinance disposal or hazardous materials response unit.

23-901-13-(c) An occupational disease which is due to causes and conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and not the ordinary diseases to which the general public is exposed, and subject to section 23-901.01.)

23-1043.05. Heart-related, perivascular and pulmonary cases; firefighters; definition

  1. A heart-related, perivascular or pulmonary injury, illness or death of a firefighter is presumed to be an occupational disease as defined in section 23-901, paragraph 13, subdivision (c), compensable pursuant to section 23-1043.01 and deemed to arise out of employment if all of the following apply:
    1. The firefighter passed a physical examination before employment and the examination did not indicate evidence of heart-related, perivascular or pulmonary injury or illness.
    2. The firefighter received a physical examination that is reasonably aligned with the national fire protection association standard on comprehensive occupational medical program for fire departments (NFPA 1582).
    3. The firefighter was exposed to a known event and The heart-related, perivascular or pulmonary injury, illness or death occurred within twenty-four hours after the exposure and was reasonably related to the exposure.
  2. The presumption provided in subsection A of this section may be rebutted By a preponderance of the evidence that there is a specific cause of the heart-related, perivascular or pulmonary injury, illness or death other than the employment.
  3. Subsection A of this section does not apply if there is evidence that the firefighter’s exposure to cigarettes or tobacco products outside the scope of the firefighter’s official duties is a substantial contributing cause in the development of the heart-related, perivascular or pulmonary injury, illness or death.
  4. For the purposes of this section, “firefighter” means a firefighter or volunteer firefighter as described in section 23-901, paragraph 6, subdivision (d).

38-672.
Traumatic event counseling for public safety employees; report; exceptions; definitions

  1. Notwithstanding any other law, this state or a political subdivision of this state shall establish a program to provide public safety employees who are exposed to any one of the following events while in the course of duty up to twelve visits of licensed counseling, which may be provided via telemedicine, paid for by the employer:
    1. Visually witnessing the death or maiming or visually witnessing the immediate aftermath of such a death or maiming of one or more human beings.
    2. Responding to or being directly involved in a criminal investigation of an offense involving a dangerous crime against children as defined in section 13-705.
    3. Requiring rescue in the line of duty where one’s life was endangered.
  2. Payment by the employer for licensed counseling pursuant to this section does not create a presumption that a claim is compensable under section 23-1043.01, subsection B.
  3. For each program established pursuant to this section, this state and each political subdivision of this state shall compile the following data:
    1. The total number of public safety employees who have participated in the program.
    2. The average number of visits per public safety employee.
    3. The average number of months that a public safety employee participated in the program.
    4. The average number of days that a public safety employee who participated in the program missed work.
    5. The total number of public safety employees who participated in the program and who subsequently filed a workers’ compensation claim and the number of those claims that were approved and the number of those claims that were denied.
    6. For each employer, the total amount of work missed by public safety employees who participated in the program and how missed work was provided for by the employer or through employee benefits.
  4. On or before September 1, 2019 and September 1 of each year thereafter, this state and each political subdivision of this state shall submit the data collected pursuant to subsection C of this section to the department of administration. On or before October 1, 2019 and October 1 of each year thereafter, the department of administration shall compile the data into a report and submit the report to the governor, the president of the senate, the speaker of the house of representatives, the chairperson of the senate health and human services committee, or its successor committee, the chairperson of the house of representatives health committee, or its successor committee, the chairperson of the senate commerce and public safety committee, or its successor committee, and the chairperson of the house of representatives judiciary and public safety committee, or its successor committee, and shall provide a copy of this report to the secretary of state. Subsection C of this section and this subsection do not authorize this state or a political subdivision of this state to compile and report data that is protected under the health insurance portability and accountability act of 1996 (P.L. 104-191; 110 Stat. 1936).
  5. This section does not apply to a state employer that provides a program to its public safety employees that is characterized by all of the following:
    1. The program is paid for by the employer.
    2. The program provides licensed counseling for any issue. For licensed counseling related to trauma experienced while in the line of duty, the licensed counseling is provided on the request of the public safety employee and shall be is in person.
    3. Before July 1, 2017, the program offers at least six visits per year.
    4. On or after July 1, 2017, the program offers at least twelve visits per year.
  6. For the purposes of this section:
    1. “Licensed counseling” means counseling provided by a licensed mental health professional pursuant to title 32, chapter 19.1 or 33 if licensees under title 32, chapter 33 have training and expertise in treating trauma.
    2. “Public safety employee”:
      1. Means:
        1. Except as prescribed in subdivision (b) of this paragraph, an individual who is a member of the public safety personnel retirement system or the corrections officer retirement plan.
        2. Except as prescribed in subdivision (b) of this paragraph, a probation officer, surveillance officer or juvenile detention officer who is employed by this state or a political subdivision of this state.
      2. Does not include peace officers or firefighters.

38-673.
Traumatic event counseling for peace officers and firefighters; report; exceptions; definitions

  1. Notwithstanding any other law, this state or a political subdivision of this state shall establish a program to provide peace officers and firefighters who are exposed to any one of the following events while in the course of duty up to twelve visits of licensed counseling, which may be provided via telemedicine, paid for by the employer:
    1. Visually witnessing the death or maiming or visually witnessing the immediate aftermath of such a death or maiming of one or more human beings.
    2. Responding to or being directly involved in a criminal investigation of an offense involving a dangerous crime against children as defined in section 13-705.
    3. Requiring rescue in the line of duty where one’s life was endangered.
    4. Using deadly force or being subjected to deadly force in the line of duty, regardless of whether the peace officer or firefighter was physically injured.
    5. Witnessing the death of another peace officer or firefighter while engaged in the line of duty.
    6. responding to or being directly involved in an investigation regarding the drowning or near drowning of a child.
  2. If the licensed mental health professional determines that the peace officer or firefighter needs additional visits of licensed counseling beyond that which the peace officer or firefighter is entitled to under subsection A of this section and that the additional visits are likely to improve the peace officer’s or firefighter’s condition, the employer shall pay for up to an additional twenty-four visits, if the visits occur within one year after the first visit pursuant to this section.
  3. An employer may not Require a peace officer or firefighter who is receiving treatment pursuant to this section to use the peace officer’s or firefighter’s accrued paid vacation, personal leave or sick leave if the peace officer or firefighter leaves work to attend a treatment visit pursuant to this section.
  4. If the licensed mental health professional determines that the peace officer or firefighter is not fit for duty while the peace officer or firefighter is receiving treatment pursuant to this section, the employer shall ensure that the peace officer or firefighter has no loss of pay and benefits for up to thirty calendar days per incident after the date the licensed mental health professional determines that the employee is not fit for duty if all of the following apply:
    1. The peace officer or firefighter is unable to work light duty or the employer does not offer a light duty option.
    2. The peace officer or firefighter has exhausted the peace officer’s or firefighter’s sick leave, vacation leave or other leave that is provided as part of the peace officer’s or firefighter’s benefits package.
    3. If the employer offers short-term disability benefits, the employer offered and the peace officer or firefighter elected short-term disability benefits, but the peace officer or firefighter is not eligible to receive short-term disability benefits.
    4. The employer does not have a supplemental program that provides pay and benefits after the occurrence of an injury. For the purposes of this paragraph, supplemental program that provides pay and benefits after the occurrence of an injury does not include a supplemental benefits plan established pursuant to section 38-961.
  5. An employer shall allow a peace officer or firefighter to select the peace officer’s or firefighter’s own licensed mental health professional, except that if a licensed mental health professional declines to provide counseling pursuant to this section, the employer is not required to secure the services of that licensed mental health professional. The employer shall pay the licensed mental health professional pursuant to the schedule of fees that is fixed by the industrial commission of Arizona pursuant to section 23-908.
  6. Payment by the employer for licensed counseling pursuant to this section does not create a presumption that a claim is compensable under section 23-1043.01, subsection B.
  7. For each program established pursuant to this section, this state and each political subdivision of this state shall compile the following data for peace officers and firefighters:
    1. For each category of persons, the total number of persons who have participated in the program.
    2. For each category of persons, the average number of visits per person.
    3. For each category of persons, the average number of months that a person participated in the program.
    4. For each category of persons, the average number of days that a person who participated in the program missed work.
    5. For each category of persons, the total number of persons who participated in the program and who subsequently filed a workers’ compensation claim and the number of those claims that were approved and the number of those claims that were denied.
    6. For each category of persons, of the total number of persons who have participated in the program, the percentage of persons who received additional visits under subsection B of this section.
    7. For each category of persons, the total number of persons who were deemed not fit for duty by a licensed mental health professional pursuant to subsection D of this section.
    8. For each employer, the total amount of work missed by each category of persons who participated in the program and how missed work was provided for by the employer or through employee benefits.
  8. On or before September 1, 2019 and September 1 of each year thereafter, this state and each political subdivision of this state shall submit the data collected pursuant to subsection G of this section to the department of administration. On or before October 1, 2019 and October 1 of each year thereafter, the department of administration shall compile the data into a report and submit the report to the governor, the president of the senate, the speaker of the house of representatives, the chairperson of the senate health and human services committee, or its successor committee, the chairperson of the house of representatives health committee, or its successor committee, the chairperson of the senate commerce and public safety committee, or its successor committee, and the chairperson of the house of representatives judiciary and public safety committee, or its successor committee, and shall provide a copy of this report to the secretary of state. Subsection G of this section and this subsection do not authorize this state or a political subdivision of this state to compile and report data that is protected under the health insurance portability and accountability act of 1996 (P.L. 104-191; 110 Stat. 1936).
  9. This section does not apply to a state employer that provides a program to its peace officers and firefighters that is characterized by all of the following:
    1. The program is paid for by the employer.
    2. The program provides licensed counseling for any issue. For licensed counseling related to trauma experienced while in the line of duty, the licensed counseling is provided on the request of the peace officer or firefighter and is in person.
    3. The program offers at least twelve visits per year and will offer additional visits if the licensed mental health professional determines that additional visits are necessary.
  10. For the purposes of this section:
    1. “Licensed counseling” means counseling provided by a licensed mental health professional.
    2. “Licensed mental health professional” means a psychiatrist or psychologist who is licensed pursuant to title 32, chapter 13, 17 or 19.1.

Section 38-673, Arizona Revised Statutes, as added by this act, is repealed from and after December 31, 2022.

This act may be cited as the “Officer Craig Tiger Act”.