Are first responders who die from COVID-19 contracted on duty eligible for Mississippi's $100,000 line-of-duty death benefit?

Plain-English summary

Lincoln County's Sheriff asked whether a Mississippi first responder's death from COVID-19 contracted on duty would qualify the surviving family for the $100,000 Mississippi Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund payment.

The AG said yes, the term "cause of death" in Section 45-2-1 covers COVID-19 deaths. The reasoning runs through the federal definitions the Mississippi statute references.

Section 45-2-1 sets up the $100,000 benefit when a "covered individual" (law enforcement officer or firefighter, including volunteer firefighters, employed by an "employer" as defined) dies in the performance of official duties from a "covered cause of death." It excludes suicide and intentionally self-inflicted injury.

The key definition: "cause of death" means "any cause of death that would be covered under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, generally codified at 42 USCS Chapter 46." Mississippi's statute expressly incorporates federal law.

The federal PSOBA was renumbered in 2017 and is now at 34 U.S.C. § 10101 et seq. The death-benefits provision (§ 10281) covers death "as the direct and proximate result of a personal injury sustained in the line of duty." The federal regulations (28 C.F.R. § 32.3) define "injury" to mean a "traumatic physical wound (or a traumatized physical condition of the body) directly and proximately caused by external force (such as bullets, explosives, sharp instruments, blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria . . . ."

That definition encompasses an "infectious disease" and "virus." COVID-19 is both. So the federal definition reaches COVID-19 deaths, and through the Mississippi statute's incorporation, so does Mississippi's death benefit.

The AG flagged a procedural caution. The Mississippi Department of Public Safety administers the Trust Fund, and DPS makes the factual determination on each claim. The AG opinion answers the legal question (yes, COVID-19 is a covered cause of death) but not the factual questions in any specific case (was this person a covered individual, was the death in the performance of duty, was the cause of death actually COVID-19 contracted in line of duty, etc.).

What this means for you

For Mississippi sheriffs, police chiefs, and fire chiefs

If a covered officer or firefighter has died from COVID-19 contracted in connection with duty, the family may have a claim. The legal question is settled in their favor by this opinion. The factual evidence needed:

• Documentation that the death was caused by COVID-19 (death certificate, medical records)
• Documentation that the officer or firefighter contracted COVID-19 in connection with duty (responses to calls involving sick or potentially infected persons, station-house exposure, exposure during an arrest or investigation)
• Documentation of employment status as a covered individual
• Compliance with the application procedures of the Mississippi Department of Public Safety

For prospective protection, document exposures as they happen. If an officer is exposed during a call and later tests positive, contemporaneous documentation supports the line-of-duty connection if a death claim later becomes necessary.

For Mississippi first responder families

If your family member was a Mississippi law enforcement officer or firefighter (including volunteer firefighters) and died from COVID-19 connected to their duty, you may be eligible for the $100,000 Trust Fund payment. The opinion confirms COVID-19 is a covered cause; you still have to apply through the Mississippi Department of Public Safety and meet the factual requirements.

Steps to consider:

• Contact the Mississippi Department of Public Safety to request a claim form
• Gather medical records connecting the death to COVID-19
• Gather employment records establishing covered-individual status
• Document the line-of-duty exposure (work schedules, incident reports, witnesses)
• Consider working with an attorney experienced in death-benefit claims; the application process is non-trivial

For county administrators and HR officers

When a covered employee dies, ensure the family knows about the Trust Fund. Mississippi has specific paperwork requirements that families may not know about during a difficult time. A standard checklist for a covered employee's death should include the Trust Fund application.

For attorneys representing public safety personnel and families

The legal question is closed for COVID-19 deaths in Mississippi: the cause of death is covered under Section 45-2-1. The fight is on the factual elements:

• Was the deceased a "covered individual"? Check the definitional subsection 45-2-1(1)(c)-(d) for "law enforcement officer" and "firefighter" definitions.
• Was the death in the performance of official duties? Line-of-duty exposure is the key fact.
• Was the cause of death COVID-19? Death certificates may say "respiratory failure" or "pneumonia" with COVID-19 as a contributing cause; review for the actual chain of causation.
• Did the death meet the "direct and proximate result" causation test? Federal cases interpreting 28 C.F.R. § 32.3 may be useful.

Federal PSOBA precedents may be persuasive on these elements, even when handling state Trust Fund claims, because the state statute incorporates federal definitions.

Common questions

Q: What is the Mississippi Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund?
A: It is a state-administered fund that pays $100,000 to the beneficiary of a covered individual who dies in the line of duty from a covered cause. Established under Section 45-2-1, administered by the Department of Public Safety.

Q: What is the federal PSOBA?
A: The Public Safety Officers' Benefits Act, originally at 42 U.S.C. Chapter 46, renumbered in 2017 to 34 U.S.C. § 10101 et seq. The federal program pays a separate (larger) federal benefit. The Mississippi statute incorporates the PSOBA's definitions, which is why the federal definitions matter here.

Q: Are volunteer firefighters covered?
A: Yes. Section 45-2-1 expressly includes volunteer firefighters as covered individuals.

Q: What about EMTs and paramedics?
A: The Mississippi statute uses "law enforcement officer" and "firefighter" terminology. Whether EMTs are covered depends on definitional details. Check Section 45-2-1(1)(c)-(d) and any DPS guidance. Some EMS personnel are firefighters as well; that is the usual covered path.

Q: Does the death have to be on shift, on the scene of a specific call?
A: Not necessarily. The federal definition reaches injuries (including viral exposures) sustained in the performance of duty. Cumulative exposure across multiple shifts can support a finding, depending on the facts.

Q: What if the officer was vaccinated?
A: Vaccination is not a bar to coverage. The question is whether the death was caused by COVID-19 contracted in connection with duty. Vaccination reduces risk but does not eliminate it.

Q: What if the officer caught COVID-19 from a family member?
A: The line-of-duty connection is the critical factual question. If exposure traced to a duty-related setting (a call, the station, a work-related interaction), coverage is likely. If exposure was entirely external to duty, coverage is more difficult.

Q: Can the family claim both the Mississippi state benefit and the federal PSOBA benefit?
A: Yes, the two programs operate separately. The Mississippi Trust Fund pays $100,000; the federal PSOBA pays a much larger amount. Apply for both.

Q: Can the family claim worker's compensation as well?
A: Yes, worker's compensation is a separate scheme and does not bar the Trust Fund claim.

Q: Does the death certificate have to say COVID-19 specifically?
A: A clear chain showing COVID-19 as the cause is needed. Some death certificates list "respiratory failure" or "pneumonia" without naming COVID-19. Medical records, hospital documentation, and physician affidavits can fill the gap.

Q: How long do families have to file?
A: The statute and DPS regulations have time limits. File as soon as possible and consult an attorney about the specific deadlines. Do not assume a long window is available.

Background and statutory framework

Mississippi created the Trust Fund to support the families of officers and firefighters who die in the line of duty. The statutory framework cross-references federal law to take advantage of the developed federal jurisprudence on what counts as a line-of-duty death.

The federal PSOBA was enacted in 1976. Its definition of "injury" in 28 C.F.R. § 32.3 is broad. It covers traumatic physical wounds and physical conditions caused by external force, chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria. The infectious-disease and virus categories are what reach COVID-19.

The federal program has paid death benefits for officers who died from communicable disease exposure in line of duty before COVID-19, including for tuberculosis exposure and other infections. The framework was already in place; the AG's 2021 opinion confirmed it applies to COVID-19 too.

Section 7-5-25 limits the AG to issuing opinions on prospective state law and bars the AG from interpreting federal law in a vacuum. But where Mississippi law expressly incorporates federal law, the AG can analyze the incorporated portions. The Majors (2019) and Strong (1984) opinions establish that pattern. So the AG could properly analyze the federal PSOBA "injury" definition for purposes of applying the incorporating Mississippi statute.

The factual administration of any specific claim falls to the Mississippi Department of Public Safety. The AG opinion settles the legal question; DPS evaluates each claim.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law
- Miss. Code Ann. § 45-2-1, Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund
- Miss. Code Ann. § 49-5-105, federal endangered-species lists incorporated into state law (cited as analogous incorporation example)
- Miss. Code Ann. § 97-37-5, federal-law incorporation example regarding firearms
- 34 U.S.C. § 10101 et seq., Public Safety Officers' Benefits Act of 1976
- 34 U.S.C. § 10281, payment of death benefits
- 28 C.F.R. § 32.3, federal regulation defining "injury" for PSOBA purposes
- 18 U.S.C. § 925(a), (c), federal firearms-relief provision

Prior AG opinions cited:
- MS AG Op., Barton (May 17, 2021)
- MS AG Op., Criswell (Aug. 26, 2016)
- MS AG Op., Magee (Aug. 29, 2008)
- MS AG Op., Majors (May 24, 2019)
- MS AG Op., Snell (Mar. 16, 2018)
- MS AG Op., Strong (Oct. 18, 1984)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/11/S.Rushing-October-29-2021-COVID-19-and-First-Responder-Line-of-Duty-Death-Benefits.pdf

Original opinion text

October 29, 2021

The Honorable Steve Rushing
Lincoln County Sheriff
215 Justice Street
Brookhaven, Mississippi 39601

Re: COVID-19 and First Responder Line of Duty Death Benefits

Dear Sheriff Rushing:

The Office of the Attorney General has received your request for an official opinion.

Question Presented

Are first responder deaths caused by COVID-19 covered under Mississippi Code Annotated Section 45-2-1, entitling the surviving families to line of duty death benefits?

Brief Response

The term "cause of death" within Section 45-2-1 encompasses deaths sustained from COVID-19. A claim for death benefits from Mississippi's Law Enforcement Officers and Fire Fighters Death Benefits Trust Fund (the "Death Benefits Fund") must comport with the provisions of Section 45-2-1. Whether a particular claim under the Death Benefits Fund otherwise qualifies for payment is a matter for the Department of Public Safety to determine.

Applicable Law and Discussion

As a preliminary matter, pursuant to Section 7-5-25, an Attorney General's opinion can only be applied prospectively and can neither validate nor invalidate past action. MS AG Op., Magee at 1 (Aug. 29, 2008). Official opinions may not make factual determinations. MS AG Op., Barton at 2 n.2 (May 17, 2021). Furthermore, this office cannot "provide opinions to one entity [or individual] regarding duties of another . . . ." MS AG Op., Criswell at *1 (Aug. 26, 2016).

Established pursuant to Section 45-2-1, the Death Benefits Fund provides a payment of $100,000 to the beneficiary of a law enforcement officer or firefighter (including volunteer firefighter) who sustains a "covered cause of death," as that term is defined in Section 45-2-1, in relation to the performance of his or her official duties. Specifically, the Code requires the following:

The Department of Public Safety shall make a payment, as provided in this section, in the amount of One Hundred Thousand Dollars ($100,000.00) when a covered individual, while engaged in the performance of the person's official duties, dies or receives accidental or intentional bodily injury that results in the loss of the covered individual's life and such death is the result of a covered cause of death, provided that the death is not the result of suicide and that the bodily injury is not intentionally self-inflicted.

Miss. Code Ann. § 45-2-1(2)(a). The term "covered individual" is defined as "a law enforcement officer or firefighter, including volunteer firefighters, as defined in this section when employed by an employer as defined in this section; it does not include employees of independent contractors." The code section goes on to define the terms "firefighter" and "law enforcement officer." Miss. Code Ann. § 45-2-1(1)(c), (d).

Central to the question raised in your request, "cause of death" is defined as "any cause of death that would be covered under the Public Safety Officers' Benefits Act of 1976 or the Hometown Heroes Survivors Benefits Act of 2003, generally codified at 42 USCS Chapter 46." Miss. Code Ann. § 45-2-1(1)(e).

This office has long found that, pursuant to Section 7-5-25, it cannot, by official opinion, interpret federal law. See, e.g., MS AG Op., Snell at 2 (Mar. 16, 2018). However, when Mississippi law explicitly incorporates portions of federal law, we have analyzed those incorporated portions. MS AG Op., Majors at 2 (May 24, 2019) (explaining that Section 97-37-5 incorporates 18 U.S.C.A. Section 925(c) as an exemption but does not incorporate Section 925(a)); MS AG Op., Strong at *1–2 (Oct. 18, 1984) (discussing the incorporation of the United States' List of Endangered Native Fish and Wildlife into Section 49-5-105 and opining, "[b]y the express inclusion of the federal lists into the State statute, all the provisions of federal statute defining the species or subspecies appearing thereon and applicable to the federal lists are thereby incorporated in the State statute."). The term "cause of death," within Section 45-2-1, expressly incorporates federal law.

The federal Public Safety Officers' Benefits Act of 1976 ("PSOBA") was enacted as part L of Title I of the Omnibus Crime Control and Safe Streets Act of 1968 and originally classified to Chapter 46 of Title 42. In 2017, the PSOBA was editorially reclassified and renumbered and is now codified at 34 U.S.C. § 10101 et seq. Section 10281 is entitled "Payment of death benefits," and states, in pertinent part, that in any case where it is determined "under regulations issued pursuant to this subchapter, that a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty," then payment will be made. 34 U.S.C. § 10281 (emphasis added). This section does not define the term "injury" but, instead, references regulations promulgated by the United States Bureau of Justice Assistance to implement the PSOBA.

28 C.F.R. § 32.3, the relevant federal regulation, defines the term "injury" for purposes of the PSOBA, as:

[A] traumatic physical wound (or a traumatized physical condition of the body) directly and proximately caused by external force (such as bullets, explosives, sharp instruments, blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation, virus, or bacteria . . . .

The definition of "injury" encompasses a physical condition of the body directly and proximately caused by an "infectious disease" and "virus," both of which appear to include COVID-19. Accordingly, the term "cause of death" within Section 45-2-1 encompasses deaths sustained from COVID-19.

Notably, a claim for death benefits must comport with the provisions of Section 45-2-1. Whether a particular claim under the Death Benefits Fund otherwise qualifies for payment is a matter for the Department of Public Safety to determine.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General