CoVid-19 and Workers Comp

Common annual infections, such as a cold or the flu, have not been considered compensable workers' compensation injuries. Even though every state has its own legal interpretations to this rule, if the place of employment has a high risk of contraction of a illnesses like COVID-19, workers' compensation agencies may have decided that an employee's exposure is compensable. Other workers with jobs previously considered safe, such as grocery store checkout clerks, are now frontline workers of the COVID-19 pandemic.

Due to this change, some states are now taking action to extend workers' compensation coverage to first responders, prison/jail officials and health care workers or other essential workers, impacted by the pandemic.  Some states are changing laws to include workers who contract COVID-19 are found to have a work-related injury so their claims are covered by Workers Comp.

Some states are changing state codes to allow employees that file workers' compensation claims a presumption that contraction of COVID-19 is work-related. In these states, employees' evidentiary requirements are decreased, making it much easier to obtain workers' compensation benefits including medical and compensation.  This increase of workers' compensation claims, will likely result in an increase in insurance premiums in the future.   

It’s pretty clear that workers in a medical or health care settings working with infected patients who gets CoVid-19 was likely infected while working, especially when they  had no known exposure outside of work.   For other workers it is often not clear how an infection occurred, particularly when they have had potential exposure both at work and at home.    

When a worker gets an injury or illness related to their job, the employee must report it to the employer.  The employer has a duty to report the injury/illness to the local WC agency in a timely manner. Non-reporting, by the employee or employer, can result in penalties, including denial of arguing coverage. Since workers' compensation statutes are state-specific, there is no one strategy in dealing with these claims.  However, the following suggestions can help address questions that these types of workers' compensation claims create.  Using these suggestions can help prepare an employer to deal with claims associated with COVID-19.

Employers should regularly consult guidelines from federal, state and local health agencies that impact employee safety and incorporate the recommendations, requirements and resources into their workplace return plans. These plans should consider the risk levels associated with the various employment positions at facilities.  Employers should also stay aware of their state's changing workers' compensation laws.  Every employer should have an infectious disease preparedness and response plan, especially for bringing people back.

Besides the very important hygiene and infection-control practices; also review and revise applicable workers' compensation policies and procedures for COVID-19 claims; and develop procedures to isolate employees or visitors who have symptoms of COVID-19 and train employees to follow them.

Consider doing the following when cases occur:

  • Add COVID-19 in the accident description and decide if additional Occupational Safety and Health Act/workers' compensation documentation must be completed.
  • Determine if the worker had contact with persons infected with COVID-19.  If so, include when and where that contact occurred in filed documentation.
  • Document when symptoms of COVID-19 began and if the employee has tested positive.
  • Determine if the worker or any member of the immediate family recently traveled to any high-risk areas.
  • Determine if immediate family members are showing CoVid symptoms.
  • Determine if other employees had recent close contact with the worker.
  • Complete and file the required first report of illness/injury with your workers' compensation agency.  Even if the employee does not seek benefits you want to protect your company by maintaining a record that shows prompt recognition and implementation of policies to keep your workforce safe.

Whatever employers decide to do regarding these claims, it is important that they understand their obligations in the event CoVid-19 comes into their workplaces. Workers' compensation claims involving CoVid-19 can grow into huge liabilities, including the filing of discrimination or Occupational Safety and Health Act violations and liability claims.

Workers' compensation claims should not be looked at only from one perspective.  Employers should take a comprehensive look at the financial exposures resulting from employees who contract CoVid-19.