Presumptive Disability Law in Florida

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CODE PART:
TITLE X - PUBLIC OFFICERS, EMPLOYEES, AND RECORDS
Chapter 112 - General Provisions
PART VIII - FIREFIGHTERS
112.18 .....special provisions relative to disability.
112.181....special provisions relative to certain communicable diseases.
112.1815..special provisions for employment-related accidents and injuries.
112.1816..Firefighters; cancer diagnosis.
633.30....Standards for firefighting; definitions.
Florida Legislative Website
DESCRIPTION:
112.18
fire fighters and law enforcement or correctional officers; special provisions relative to disability.
  1. Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or fire control district fire fighter or any law enforcement officer or correctional officer as defined in s. 943.10(1), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence. However, any such fire fighter or law enforcement officer shall have successfully passed a physical examination upon entering into any such service as a fire fighter or law enforcement officer, which examination failed to reveal any evidence of any such condition. Such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance, unless the insurer and insured have negotiated for such additional benefits to be included in the policy contract.
  2. This section shall be construed to authorize the above governmental entities to negotiate policy contracts for life and disability insurance to include accidental death benefits or double indemnity coverage which shall include the presumption that any condition or impairment of health of any fire fighter, law enforcement officer, or correctional officer caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death was accidental and suffered in the line of duty, unless the contrary be shown by competent evidence.
112.181
fire fighters, paramedics, emergency medical technicians, law enforcement officers, correctional officers; special provisions relative to certain communicable diseases.
  1. DEFINITIONS.--As used in this section, the term:
    1. "Body fluids" means blood and body fluids containing visible blood and other body fluids to which universal precautions for prevention of occupational transmission of blood-borne pathogens, as established by the Centers for Disease Control and Prevention, apply. For purposes of potential transmission of meningococcal meningitis or tuberculosis, the term "body fluids" includes respiratory, salivary, and sinus fluids, including droplets, sputum, and saliva, mucous, and other fluids through which infectious airborne organisms can be transmitted between persons.
    2. "Emergency rescue or public safety worker" means any person employed full time by the state or any political subdivision of the state as a fire fighter, paramedic, emergency medical technician, law enforcement officer, or correctional officer who, in the course of employment, runs a high risk of occupational exposure to hepatitis, meningococcal meningitis, or tuberculosis and who is not employed elsewhere in a similar capacity. However, the term "emergency rescue or public safety worker" does not include any person employed by a public hospital licensed under chapter 395 or any person employed by a subsidiary thereof.
    3. "Hepatitis" means hepatitis A, hepatitis B, hepatitis non-A, hepatitis non-B, hepatitis C, or any other strain of hepatitis generally recognized by the medical community.
    4. "High risk of occupational exposure" means that risk that is incurred because a person subject to the provisions of this section, in performing the basic duties associated with his or her employment:
      1. Provides emergency medical treatment in a non-health-care setting where there is a potential for transfer of body fluids between persons;
      2. At the site of an accident, fire, or other rescue or public safety operation, or in an emergency rescue or public safety vehicle, handles body fluids in or out of containers or works with or otherwise handles needles or other sharp instruments exposed to body fluids;
      3. Engages in the pursuit, apprehension, and arrest of law violators or suspected law violators and, in performing such duties, may be exposed to body fluids; or
      4. Is responsible for the custody, and physical restraint when necessary, of prisoners or inmates within a prison, jail, or other criminal detention facility, while on work detail outside the facility, or while being transported and, in performing such duties, may be exposed to body fluids.
    5. "Occupational exposure," in the case of hepatitis, meningococcal meningitis, or tuberculosis, means an exposure that occurs during the performance of job duties that may place a worker at risk of infection.
  2. PRESUMPTION; ELIGIBILITY CONDITIONS.--Any emergency rescue or public safety worker who suffers a condition or impairment of health that is caused by hepatitis, meningococcal meningitis, or tuberculosis, that requires medical treatment, and that results in total or partial disability or death shall be presumed to have a disability suffered in the line of duty, unless the contrary is shown by competent evidence; however, in order to be entitled to the presumption, the emergency rescue or public safety worker must, by written affidavit as provided in s. 92.50, verify by written declaration that, to the best of his or her knowledge and belief:
    1. In the case of a medical condition caused by or derived from hepatitis, he or she has not:
      1. Been exposed, through transfer of bodily fluids, to any person known to have sickness or medical conditions derived from hepatitis, outside the scope of his or her employment;
      2. Had a transfusion of blood or blood components, other than a transfusion arising out of an accident or injury happening in connection with his or her present employment, or received any blood products for the treatment of a coagulation disorder since last undergoing medical tests for hepatitis, which tests failed to indicate the presence of hepatitis;
      3. Engaged in unsafe sexual practices or other high-risk behavior, as identified by the Centers for Disease Control and Prevention or the Surgeon General of the United States, or had sexual relations with a person known to him or her to have engaged in such unsafe sexual practices or other high-risk behavior; or
      4. Used intravenous drugs not prescribed by a physician.
    2. In the case of meningococcal meningitis, in the 10 days immediately preceding diagnosis he or she was not exposed, outside the scope of his or her employment, to any person known to have meningococcal meningitis or known to be an asymptomatic carrier of the disease.
    3. In the case of tuberculosis, in the period of time since the worker's last negative tuberculosis skin test, he or she has not been exposed, outside the scope of his or her employment, to any person known by him or her to have tuberculosis.
  3. IMMUNIZATION.--Whenever any standard, medically recognized vaccine or other form of immunization or prophylaxis exists for the prevention of a communicable disease for which a presumption is granted under this section, if medically indicated in the given circumstances pursuant to immunization policies established by the Advisory Committee on Immunization Practices of the United States Public Health Service, an emergency rescue or public safety worker may be required by his or her employer to undergo the immunization or prophylaxis unless the worker's physician determines in writing that the immunization or other prophylaxis would pose a significant risk to the worker's health. Absent such written declaration, failure or refusal by an emergency rescue or public safety worker to undergo such immunization or prophylaxis disqualifies the worker from the benefits of the presumption.
  4. LIFE AND DISABILITY INSURANCE COVERAGE.--This section does not apply to benefits payable under or granted in a noncompulsory policy of life insurance or disability insurance, unless the insurer and insured have negotiated for such additional benefits to be included in the policy contract. However, the state or any political subdivision of the state may negotiate a policy contract for life and disability insurance which includes accidental death benefits or double indemnity coverage for any condition or impairment of health suffered by an emergency rescue or public safety worker, which condition or impairment is caused by a disease described in this section and results in total or partial disability or death.
  5. RECORD OF EXPOSURES.--The employing agency shall maintain a record of any known or reasonably suspected exposure of an emergency rescue or public safety worker in its employ to the diseases described in this section and shall immediately notify the employee of such exposure. An emergency rescue or public safety worker shall file an incident or accident report with his or her employer of each instance of known or suspected occupational exposure to hepatitis infection, meningococcal meningitis, or tuberculosis.
  6. REQUIRED MEDICAL TESTS; PREEMPLOYMENT PHYSICAL.--In order to be entitled to the presumption provided by this section:
    1. An emergency rescue or public safety worker must, prior to diagnosis, have undergone standard, medically acceptable tests for evidence of the communicable disease for which the presumption is sought, or evidence of medical conditions derived therefrom, which tests fail to indicate the presence of infection. This paragraph does not apply in the case of meningococcal meningitis.
    2. On or after June 15, 1995, an emergency rescue or public safety worker may be required to undergo a preemployment physical examination that tests for and fails to reveal any evidence of hepatitis or tuberculosis.
  7. DISABILITY RETIREMENT.--This section does not change the basic requirements for determining eligibility for disability retirement benefits under the Florida Retirement System or any pension plan administered by this state or any political subdivision thereof, except to the extent of affecting the determination as to whether a member was disabled in the line of duty or was otherwise disabled
112.1815
fire fighters, paramedics, emergency medical technicians, and law enforcement officers; special provisions for employment-related accidents and injuries.--
  1. The term "first responder" as used in this section means a law enforcement officer as defined in s. 943.10, a fire fighter as defined in s. 633.30, or an emergency medical technician or paramedic as defined in s. 401.23 employed by state or local government. A volunteer law enforcement officer, fire fighter, or emergency medical technician or paramedic engaged by the state or a local government is also considered a first responder of the state or local government for purposes of this section.
    1. For the purpose of determining benefits under this section relating to employment-related accidents and injuries of first responders, the following shall apply:
      1. An injury or disease caused by the exposure to a toxic substance is not an injury by accident arising out of employment unless there is a preponderance of the evidence establishing that exposure to the specific substance involved, at the levels to which the first responder was exposed, can cause the injury or disease sustained by the employee.
      2. Any adverse result or complication caused by a smallpox vaccination of a first responder is deemed to be an injury by accident arising out of work performed in the course and scope of employment.
      3. A mental or nervous injury involving a first responder and occurring as a manifestation of a compensable injury must be demonstrated by clear and convincing evidence. For a mental or nervous injury arising out of the employment unaccompanied by a physical injury involving a first responder, only medical benefits under s. 440.13 shall be payable for the mental or nervous injury. However, payment of indemnity as provided in s. 440.15 may not be made unless a physical injury arising out of injury as a first responder accompanies the mental or nervous injury. Benefits for a first responder are not subject to any limitation on temporary benefits under s. 440.093 or the 1-percent limitation on permanent psychiatric impairment benefits under s. 440.15(3)(c).
    2. In cases involving occupational disease, both causation and sufficient exposure to a specific harmful substance shown to be present in the workplace to support causation shall be proven by a preponderance of the evidence.
  2. Permanent total supplemental benefits received by a first responder whose employer does not participate in the social security program shall not terminate after the first responder attains the age of 62.
  3. For the purposes of this section, the term "occupational disease" means only a disease that arises out of employment as a first responder and is due to causes and conditions that are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.
    1. For the purposes of this section and chapter 440, and notwithstanding sub-subparagraph (2)(a)3. and ss. 440.093 and 440.151(2), posttraumatic stress disorder, as described in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published by the American Psychiatric Association, suffered by a first responder is a compensable occupational disease within the meaning of subsection (4) and s. 440.151 if:
      1. The posttraumatic stress disorder resulted from the first responder acting within the course of his or her employment as provided in s. 440.091; and
      2. The first responder is examined and subsequently diagnosed with such disorder by a licensed psychiatrist who is an authorized treating physician as provided in chapter 440 due to one of the following events:
        1. Seeing for oneself a deceased minor;
        2. Directly witnessing the death of a minor;
        3. Directly witnessing an injury to a minor who subsequently died before or upon arrival at a hospital emergency department;
        4. Participating in the physical treatment of an injured minor who subsequently died before or upon arrival at a hospital emergency department;
        5. Manually transporting an injured minor who subsequently died before or upon arrival at a hospital emergency department;
        6. Seeing for oneself a decedent whose death involved grievous bodily harm of a nature that shocks the conscience;
        7. Directly witnessing a death, including suicide, that involved grievous bodily harm of a nature that shocks the conscience;
        8. Directly witnessing a homicide regardless of whether the homicide was criminal or excusable, including murder, mass killing as defined in 28 U.S.C. s. 530C, manslaughter, self defense, misadventure, and negligence;
        9. Directly witnessing an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience;
        10. Participating in the physical treatment of an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience; or
        11. Manually transporting a person who was injured, including by attempted suicide, and subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience.
    2. Such disorder must be demonstrated by clear and convincing medical evidence.
    3. Benefits for a first responder under this subsection:
      1. Do not require a physical injury to the first responder; and
      2. Are not subject to:
        1. Apportionment due to a preexisting posttraumatic stress disorder;
        2. Any limitation on temporary benefits under s. 440.093; or
        3. The 1-percent limitation on permanent psychiatric impairment benefits under s. 440.15(3).
    4. The time for notice of injury or death in cases of compensable posttraumatic stress disorder under this subsection is the same as in s. 440.151(6) and is measured from one of the qualifying events listed in subparagraph (a)2. or the manifestation of the disorder, whichever is later. A claim under this subsection must be properly noticed within 52 weeks after the qualifying event.
    5. As used in this subsection, the term:
      1. "Directly witnessing" means to see or hear for oneself.
      2. "Manually transporting" means to perform physical labor to move the body of a wounded person for his or her safety or medical treatment.
      3. "Minor" has the same meaning as in s. 1.01(13)
    6. The Department of Financial Services shall adopt rules specifying injuries qualifying as grievous bodily harm of a nature that shocks the conscience for the purposes of this subsection.
  4. An employing agency of a first responder, including volunteer first responders, must provide educational training related to mental health awareness, prevention, mitigation, and treatment.


Section 2. The Legislature determines and declares that this act fulfills an important state interest.

Section 3. This act shall take effect October 1, 2018.
  1. As used in this section, the term:
    1. "Cancer" includes:
      1. Bladder cancer.
      2. Brain cancer.
      3. Breast cancer.
      4. Cervical cancer.
      5. Colon cancer.
      6. Esophageal cancer.
      7. Invasive skin cancer.
      8. Kidney cancer.
      9. Large intestinal cancer.
      10. Lung cancer.
      11. Malignant melanoma.
      12. Mesothelioma.
      13. Multiple myeloma.
      14. Non-Hodgkin’s lymphoma.
      15. Oral cavity and pharynx cancer.
      16. Ovarian cancer.
      17. Prostate cancer.
      18. Rectal cancer.
      19. Stomach cancer.
      20. Testicular cancer.
      21. Thyroid cancer.
    2. "Employer" has the same meaning as in s. 112.191.
    3. "Firefighter" means an individual employed as a full-time firefighter within the fire department or public safety department of an employer whose primary responsibilities are the prevention and extinguishing of fires; the protection of life and property; and the enforcement of municipal, county, and state fire prevention codes and laws pertaining to the prevention and control of fires.
  2. Upon a diagnosis of cancer, a firefighter is entitled to the following benefits, as an alternative to pursuing workers’ compensation benefits under chapter 440, if the firefighter has been employed by his or her employer for at least 5 continuous years, has not used tobacco products for at least the preceding 5 years, and has not been employed in any other position in the preceding 5 years which is proven to create a higher risk for any cancer:
    1. Cancer treatment covered within an employer-sponsored health plan or through a group health insurance trust fund. The employer must timely reimburse the firefighter for any out-of-pocket deductible, copayment, or coinsurance costs incurred due to the treatment of cancer.
    2. A one-time cash payout of $25,000, upon the firefighter’s initial diagnosis of cancer. If the firefighter elects to continue coverage in the employer-sponsored health plan or group health insurance trust fund after he or she terminates employment, the benefits specified in paragraphs (a) and (b) must be made available by the former employer of a firefighter for 10 years following the date on which the firefighter terminates employment so long as the firefighter otherwise met the criteria specified in this subsection when he or she terminated employment and was not subsequently employed as a firefighter following that date. For purposes of determining leave time and employee retention policies, the employer must consider a firefighter’s cancer diagnosis as an injury or illness incurred in the line of duty.
    1. If the firefighter participates in an employer-sponsored retirement plan, the retirement plan must consider the firefighter totally and permanently disabled in the line of duty if he or she meets the retirement plan’s definition of totally and permanently disabled due to the diagnosis of cancer or circumstances that arise out of the treatment of cancer.
    2. If the firefighter does not participate in an employer-sponsored retirement plan, the employer must provide a disability retirement plan that provides the firefighter with at least 42 percent of his or her annual salary, at no cost to the firefighter, until the firefighter’s death, as coverage for total and permanent disabilities attributable to the diagnosis of cancer which arise out of the treatment of cancer.
    1. If the firefighter participated in an employer-sponsored retirement plan, the retirement plan must consider the firefighter to have died in the line of duty if he or she dies as a result of cancer or circumstances that arise out of the treatment of cancer.
    2. If the firefighter did not participate in an employer-sponsored retirement plan, the employer must provide a death benefit to the firefighter’s beneficiary, at no cost to the firefighter or his or her beneficiary, totaling at least 42 percent of the firefighter’s most recent annual salary for at least 10 years following the firefighter’s death as a result of cancer or circumstances that arise out of the treatment of cancer.
    3. Firefighters who die as a result of cancer or circumstances that arise out of the treatment of cancer are considered to have died in the manner as described in s.112.191(2)(a), and all of the benefits arising out of such death are available to the deceased firefighter’s beneficiary.
    1. The costs to provide the reimbursements and lump sum payments under subsection (2) and the costs to provide disability retirement benefits under paragraph (3)(b) and the line-of-duty death benefits under paragraph (4)(b) must be borne solely by the employer.
    2. The employer or employers participating in a retirement plan or system are solely responsible for the payment of the contributions necessary to fund the increased actuarial costs associated with the implementation of the presumptions under paragraphs (3)(a) and (4)(a), respectively, that cancer has, or the circumstances that arise out of the treatment of cancer have, either rendered the firefighter totally and permanently disabled or resulted in the death of the firefighter in the line of duty.
    3. An employer may not increase employee contributions required to participate in a retirement plan or system to fund the costs associated with enhanced benefits provided in subsections (3) and (4).
  3. The Division of State Fire Marshal within the Department of Financial Services shall adopt rules to establish employer cancer prevention best practices as it relates to personal protective equipment, decontamination, fire suppression apparatus, and fire stations.


Section 2. Subsection (3) of section 121.735, Florida Statutes, is amended to read:

121.735 Allocations for member line-of-duty death benefits; percentage amounts.— (3) Allocations from the Florida Retirement System Contributions Clearing Trust Fund to provide line-of-duty death benefits for members in the investment plan and to offset the costs of administering said coverage, are as follows:

Membership ClassPercentage of Gross Compensation
Regular Class 0.05%
Special Risk Class 1.21%
Special Risk Administrative Support Class 0.03%
Elected Officers’ Class— Legislators, Governor, Lt. Governor, Cabinet Officers, State Attorneys, Public Defenders 0.15%
Elected Officers’ Class— Justices, Judges 0.09%
Elected Officers’ Class— County Elected Officers 0.20%
Senior Management Service Class 0.05%


633.30 Standards for firefighting; definitions.--As used in this chapter, the term:
  1. "Firefighter" means any person initially employed as a full-time professional firefighter by any employing agency, as defined herein, whose primary responsibility is the prevention and extinguishment of fires, the protection and saving of life and property, and the enforcement of municipal, county, and state fire prevention codes, as well as of any law pertaining to the prevention and control of fires.
  2. "Employing agency" means any municipality or county, the state, or any political subdivision of the state, including authorities and special districts, employing firefighters as defined in subsection (1).
  3. "Department" means the Department of Financial Services.
  4. "Council" means the Firefighters Employment, Standards, and Training Council.
  5. "Division" means the Division of State Fire Marshal of the Department of Financial Services.