Coronavirus: Frequently Asked Questions

• In General
  
• Data Privacy
• Discrimination/EEO
  
• Immigration
• Labor
• Safety and Health
• Telework
• Unemployment
• Wage and Hour
• Workers' Compensation

In General

What COVID-19 issues should employers be concerned about once employees begin returning to the work site? 

While many employers are navigating return-to-work issues, employee-side attorneys, unions, and administrative agencies are gearing up. The decisions made over the last two months by employers are being scrutinized, and, fair or not, will be the subject of intense debate, litigation, and investigations. We created this Prospectus as a resource to help you assess where you stand with respect to some of the activity that we anticipate. 

Is it legal for an employer to require employees to be vaccinated for COVID-19? 

Under federal law, yes, provided that the employer makes exceptions for employees who (1) have disabilities that preclude them from being vaccinated (for example, the employee is immunocompromised) or (2) have sincerely held religious objections to being vaccinated. In those situations, the employer is required to engage in the interactive process with the employee and attempt to make reasonable accommodations. Depending on the circumstances, accommodations could include allowing the employee to continue working from home, or allowing him or her to return to work but require use of a mask and social distancing. 

Although government agencies have not yet addressed it, employers should also make accommodations for employees who do not want to be vaccinated while they are pregnant. 

Employers should also be aware that state and local laws may have different requirements. 

Is it legal for an employer to require employees to disclose whether they have been vaccinated, or to require proof of vaccination? 

Under federal law, yes. The proof should be only of the fact that the employee was vaccinated and should contain no other personal medical information. A vaccination card, a note from a health care provider or public health department, or a receipt from a pharmacy should all be acceptable forms of proof under federal law. 

Again, employers should be aware that state and local laws may have different requirements. 

What should employers think about if an employee may have had exposure to COVID-19? 

Primarily, two things: (1) protecting other employees, as well as third parties who may be affected, and (2) preserving the dignity and privacy of the employee who has been exposed to the extent possible. For the first, please see our OSHA/Workplace Safety FAQs. For the second, please see our Equal Employment Opportunity FAQs. 

• What laws could apply in the event of a COVID-19-related workplace situation? 

A number of federal laws could apply. Most significantly, the Occupational Safety and Health Act will apply in keeping your workplace safe for your employees. The Americans with Disabilities Act could apply to an employee who either has COVID-19 or who has an underlying medical condition that makes him or her particularly vulnerable to COVID-19. It could also apply to an employee who needs to be excused from a vaccination requirement. The ADA also governs reasonable accommodations of disabilities, and “medical inquiries” made in connection with employment and confidentiality of employee medical information. The Family and Medical Leave Act might apply.  

For employees who are able to telework, employers need to be conscious of their obligations under the Fair Labor Standards Act, and take appropriate measures to protect their confidential and proprietary information, and preserve data privacy, while employees are working from home. 

The coronavirus crisis has also resulted in immigration law concerns for employers.  

In addition to all of the above, employers need to be aware of any applicable state or local laws that might apply to their employees. 

Data Privacy

Many of our employees are continuing to telework. Of course, we are worried about the security of our data, and our confidential and proprietary information. What should we be doing to protect ourselves? 

• From a data security perspective, employers should also ensure that employees are accessing the company’s system in a secure manner. Employees may be tempted to use unsecured networks (like public Wi-Fi), but companies should caution against using such networks and provide secure options like a well-maintained virtual private network (VPN). Employers should also guard against increased malware and phishing attacks related to coronavirus, including fake news, phony cures, or questionable charities. Companies should remind all employees to be on guard and report any suspicious communications. 
• More information about data security in the current environment is available here. 

Our company has facilities in California. We are strongly encouraging employees to be vaccinated (making reasonable accommodations for employees with disabilities and religious objections). Any employee who is not vaccinated is still subject to a temperature check before entering our facility, and unvaccinated employee with symptoms of COVID is being tested onsite. Are there any precautions we should take to protect the data that we gather through these requests? 

• Yes. You are subject to the California Consumer Privacy Act, so you should update your Notice at Collection to specifically reference the testing you conduct and the reasons for it. 
• Also, you will also need to ensure that your testing does not violate the California Fair Housing and Employment Act, which may be more protective of employee rights than the ADA. 
• For more on the propriety of taking employee temperatures and testing for coronavirus, please see the FAQs under the Discrimination/EEO section. 

Discrimination/EEO

Is COVID-19 a “disability” within the meaning of the Americans with Disabilities Act? 

• Not per se, but depending on the severity and duration of the condition for a particular individual, it could be. It is also possible that related conditions could be disabilities, even if the COVID-19 itself is not. For example, if an employee has diabetes, asthma, or an immune disorder that COVID-19 affects more severely, then the employee may have a disability based on the asthma or the immune disorder, if not the coronavirus. It is also possible that the effects of a COVID-19 condition could be disabilities. 
• It’s important to note that the ADA provisions relating to employment-related “medical examinations” and confidentiality of employee medical information apply to all applicants, offerees, and employees -- whether they have ADA-protected “disabilities” or not.  

Are employers required under the ADA to make reasonable accommodations for employees with coronavirus? 

• If the coronavirus is severe enough or long enough in duration to be a “disability” within the meaning of the ADA, or if the employee has to be extra cautious because of an underlying medical condition, then yes. Even if the coronavirus is short-term or not severe enough to rise to the level of an ADA-protected disability, employers are strongly encouraged to make reasonable accommodations for employees who have the condition, or who have been exposed to the condition. In the case of a mere exposure, that could include allowing the employee to be off work (or to telecommute) for the medically recommended length of time.  

Are we allowed under the Americans with Disabilities Act to take employee temperatures or test employees for COVID-19? 

• The ADA generally considers the taking of an employee’s temperature to be a “medical examination,” which it defines as any “procedure or test that seeks information about an individual’s physical or mental impairments or health.” With current employees, medical examinations are prohibited by the ADA unless the examinations are “job-related and consistent with business necessity,” or if other very narrow exceptions apply. Generally, medical examinations of current employees are allowed if 1) the employee’s actual or suspected medical condition may be impairing the employee’s ability to perform his or her “essential job functions,” or 2) the employer has a reasonable belief that the employee poses a “direct threat” to his or her own health or safety, or that of others, that cannot be eliminated or reduced by reasonable accommodation. The second factor “must be based on objective evidence obtained, or reasonably available to the employer.” The Centers for Disease Control and Prevention, or other governmental health agencies, can provide the objective basis needed. 
• However, the EEOC has said that taking employee temperatures to screen for possible COVID-19 does not violate the ADA. Moreover, “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19” and “may measure employees’ body temperature.” 
• The EEOC also says that employers may test employees for COVID-19 without violating the ADA, but recommends that employers keep abreast of and follow the latest information about coronavirus testing from the U.S. Food and Drug Administration and the Centers for Disease Control and Prevention. 
• All test results of this nature should be kept confidential and disclosed only in accordance with the ADA or other applicable law. 

• More information about taking temperatures is available here. The full text of the EEOC’s guidance regarding COVID-19 testing is available here. All of the EEOC guidance on COVID-19 is available here. 

If we learn that an employee has coronavirus or has been exposed, how much can we say to other employees without violating the ADA’s confidentiality provisions? 

• Ideally, the only thing you will need to tell employees is that there has been an exposure in the workplace, or in a particular work location. However, it is possible that some people will need to know more than this, including the identity of the individual. Disclosure of the identity (or individually identifiable information about the individual) should be strictly limited to those with a legitimate need to know, and those employees should be instructed -- upon penalty of disciplinary action, up to and including discharge -- to keep the information confidential. 

It’s known that older people are more vulnerable to COVID-19 than younger people. For the safety of our older workers, all of whom are healthy and do not have any known disabilities, can we send them home until the pandemic is over, or reaches a safer level?  

• No. The EEOC says that would be age discrimination. But you can offer your older workers the option of telecommuting (assuming their jobs would allow for that). If that's a possibility, it would be up to the employees whether to accept that offer. Of course, if they accept, and if they are doing their jobs remotely, they are working and would have to be paid in accordance with all applicable wage and hour laws.  
• Employers are not legally required to make reasonable accommodations for age alone. But if the older workers’ jobs cannot be performed remotely (or the employees refuse your offer of teleworking), the employer can consider making workplace accommodations on a voluntary basis. 

Would the same principles that apply to older employees also apply to pregnant employees, whom we would not want to put at risk? 

• Not quite. Since the U.S. Supreme Court's 2015 decision in Young v. UPS, employers are required to make reasonable accommodations for pregnancy and related conditions if they accommodate non-pregnant employees who are similar in their ability or inability to work. 
• In the case of a pregnant employee, a more appropriate comparator would be an employee who had another medical condition that put him or her at heightened risk in the event of an exposure to COVID-19 -- for example, an employee with diabetes or an immune disorder. If you would accommodate that employee, then you would be expected to accommodate the pregnant employee, as well. 

If we have applicants or employees from “high risk” parts of the United States or the world, can we make them go through more rigorous medical screening than we'd require of their counterparts from lower-risk areas? 

• No. This could open up your company to claims for national origin discrimination, possibly disparate impact based on race or national origin, and violations of the ADA. Employers can conduct post-offer, pre-employment medical screening -- including coronavirus testing -- but they must treat all offerees in the same job category the same, regardless of race, national origin, or other EEO-protected category.  
• Although the EEOC has relaxed some of the strict ADA rules that usually apply to pre-offer medical screening, as well as screening of current employees, employers still have to treat all similarly situated people the same way and not make distinctions based on national origin or any other legally protected category. 

Immigration

Please visit our Immigration Bulletins for the latest news.

Labor 

What should unionized employers be thinking about with respect to the pandemic? 

• If a unionized employer wants to institute any new policies or change current policies or practices, it may be required to bargain with the union before doing so.  
• Depending on the specific language of the collective bargaining agreement, changes to policies about vaccinations, sick leave, working remotely, layoffs, or reductions in force may require negotiation with a union or unions. 
• For more on the employer’s duty to bargain over layoffs or other work or wage reductions, please read the next FAQ. 

We have a collective bargaining agreement. If we need to eliminate jobs, place employees on furlough, or reduce pay, what should we do? 

• Many collective bargaining agreements include a “management rights” clause, which usually gives the employer the right to manage its workforce, and may allow it to eliminate jobs or shifts in response to a pandemic. However, the specific language will be critical. Even if an employer has reserved certain rights in its CBA, that doesn’t necessarily mean that the company is able to implement changes without engaging in “effects bargaining” over the impact that the changes would have on represented workers. So, even if the company has the contractual right to take action, it may still have the legal obligation to bargain with the union.  
• There is an exception to the general duty to bargain, and that’s when an employer can point to “economic exigency” as the reason for taking action without bargaining. Proving an economic exigency is difficult, and the NLRB has traditionally found that the defense can apply only in some sort of emergency situation that was outside of the employer’s control, and that could not have been foreseen by the employer. A pandemic might qualify, but it would depend on how the pandemic affected the employer (particularly economically).    
• The best course of action is to come up with a pandemic response plan that clearly sets forth the actions being taken and the rules or policies that are being modified. Explain why the actions are occurring and what they seek to achieve. Provide the plan to the union, preferably by email, so the union is aware of what’s happening. Practically speaking, it’s also a good idea to use the union (and, in particular, your stewards) to help communicate with the employees. Keeping the union informed will give employees another resource to help them understand any changes a company may have to make. Open communication with your stewards can also provide the company with information about how the pandemic is affecting workers, and what their concerns might be. 
• For additional labor relations considerations, see COVID-19: Legal, Labor, and Employee Relations Considerations Regarding Layoffs, Furloughs, and Other Resourceful Employer Responses to the COVID-19 Emergency. 

Would a no-strike clause have any bearing on the employer’s response to employees who refuse to work because of coronavirus fears? 

It’s largely going to depend on the language of the no-strike clause in the collective bargaining agreement and the reason why employees are refusing to work. For example, is there a verified risk of exposure in the workplace, or are employees refusing to work because they can’t obtain child care? The Occupational Safety and Health Act gives employees the right to refuse to perform work that places them in imminent danger. This is another area where remaining in communication with your union and your stewards can help – stewards may be able to identify particular areas of concern, and the union and stewards may be able to help remind employees of their obligations under the contract, while also informing them of the measures being taken to ensure their safety, and reassuring them that their workplaces are safe.  

We do not have a union, but we are concerned about labor issues that might arise as employees are returning to work. Is there anything we can be doing about that now? 

Yes. This is a good time to identify the employees who are your “supervisors” within the meaning of the National Labor Relations Act, review your personnel policies and make any needed changes now, develop a communications plan, determine what the appropriate bargaining units would be, engage a labor consultant, and develop a public relations strategy. All of these actions are best taken before you become aware of union organizing activity. 

For more on this, please read The COVID-19 pandemic may spur union organizing and complicate union relations.  

Can an employee who is concerned about coronavirus simply refuse to come to work? 

Depending on geographic location, industry, and other conditions, the circumstances may or may not support an employee’s refusal to work. Here is what OSHA says on its website: 
 
An employee’s right to refuse to do a task is protected if all of the following conditions are met:

• • Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and 
  • The employee refused to work in "good faith." This means that the employee must genuinely believe that an imminent danger exists; and 
  • A reasonable person would agree that there is a real danger of death or serious injury; and 
  • There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection. 

Employers should also be mindful of Section 7 of the National Labor Relations Act. According to the NLRB’s website, Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." 

Whether a refusal to work is protected under the Occupational Safety and Health Act or constitutes protected concerted activity under Section 7 of the NLRA is a nuanced and fact-specific question. Employers should consult counsel regarding this issue. 

Safety and Health

• The Occupational Safety and Health Administration has published “Guidance on Returning to Work” as well as Frequently Asked Questions related to COVID-19. The FAQs are grouped by topic for easier reference and are user-friendly as a result. Before publication of the FAQs, employers needing information had to visit multiple pages on the OSHA website and the website for the Centers for Disease Control and Prevention. OSHA has also issued guidance for specific industries.

Should COVID-19 cases in the workplace be recorded on the OSHA-300 Log?

On May 19, OSHA issued a Revised Enforcement Guidance document, rescinding interim guidance that was issued on April 10. The Revised Guidance, which took effect May 26, explains, in very broad terms, the circumstances under which a case will be determined to be work-related and recordable. 

The new guidance first reiterates the OSHA recordkeeping criteria for recording a case of COVID-19: 

1. The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention; 
2. The case is work-related under § 1904.5, the recordkeeping regulation that deals with work-relatedness; and  
3. One or more of the general recording criteria in § 1904.7 are met, such as medical treatment or days away from work. 

The first step of the above three-step process is met only if the diagnosis of COVID-19 is established by a positive test result for SARS-CoV-2. Thus, it does not appear that symptoms alone, or even a diagnosis alone, would be enough to establish a confirmed case.  

The key to COVID-19 recordkeeping determinations is the second step: whether the case is work-related. OSHA acknowledges that because of the “ubiquity of community spread,” it is difficult to determine whether a COVID-19 illness is work-related. Employers are expected to make a “reasonable” investigation as to whether the case is work-related. According to OSHA, this means that an employer should, among other things, do the following: 

• Ask the employee how he believes the illness was contracted;
• Discuss with the employee the work and outside-of-work activities that may have led to the illness; and
• Review the employee’s work environment for potential SARS-CoV-2 exposures, including whether other employees who work near the employee also contracted COVID-19.

OSHA also notes in a different section of its Guidance document that “due weight” should be given to the opinion of a medical provider or public health authority as to whether the case is work-related. 

More information is available here. 

Is there any circumstance in which an employer would have to report a COVID-19 case to OSHA?

The Occupational Safety and Health Administration had initially published guidance in early July explaining when COVID-19 cases had to be reported, and then without explanation or announcement retracted that guidance. OSHA has now issued new guidance that clarifies the circumstances under which cases involving either an admission to a hospital or a fatality must be reported to the nearest OSHA Area Office.

OSHA’s new guidance for cases involving admission to a hospital is consistent with the existing recordkeeping rule on reporting, and the case analysis that we recommended in August: 

Under 29 CFR 1904.39(b)(6), employers are only required to report in-patient hospitalizations to OSHA if the hospitalization "occurs within twenty-four (24) hours of the work-related incident." For cases of COVID-19, the term "incident" means an exposure to SARS-CoV-2 in the workplace. Therefore, in order to be reportable, an in-patient hospitalization due to COVID-19 must occur within 24 hours of an exposure to SARS-CoV-2 at work. The employer must report such hospitalization within 24 hours of knowing both that the employee has been in-patient hospitalized and that the reason for the hospitalization was a work-related case of COVID-19. Thus, if an employer learns that an employee was in-patient hospitalized within 24 hours of a work-related incident, and determines afterward that the cause of the in-patient hospitalization was a work-related case of COVID-19, the case must be reported within 24 hours of that determination. [Citation omitted.]

COVID-19-related fatality cases must be reported to OSHA no later than eight hours after the employer learns both that an employee had tested positive for COVID-19 and that the employee died as a result. But as the new guidance provides, fatality cases must be reported only if the fatality occurred within 30 days of the employee’s last work-related exposure to coronavirus, which under most circumstances would be the last day the employee was at work.

Please also remember to analyze carefully whether COVID-19 cases at your facility are work-related, because OSHA has created a significant exception if an employer can find “an alternative explanation” for the case, such as an exposure away from work.

Because of COVID-19-related issues, we have not been able to conduct our required audits, training, or assessments. Are we in trouble?

Not necessarily. In a nod to the challenges facing many employers during the ongoing pandemic, the Occupational Safety and Health Administration has issued a “discretionary enforcement policy” titled “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic.” This policy is intended to be applied across both federal and state OSHA jurisdictions.

If an employer has not been able to comply with “annual or recurrent audits, reviews, training, or assessments” because of the COVID-19 pandemic, OSHA Area Offices have the discretion not to issue citations. But, if non-compliance is to be excused, OSHA must conclude that an employer has tried in good faith to comply but has been unable to do so because of COVID-19-related reasons, such as the unavailability of third-party consultants or industrial hygiene services.

More details are available here.

Can an employee who is concerned about coronavirus simply refuse to come to work?

• Depending on geographic location, industry, and other conditions, the circumstances may or may not support an employee’s refusal to work. Here is what OSHA says on its website:

An employee’s right to refuse to do a task is protected if all of the following conditions are met:

• • Where possible, the employee has asked the employer to eliminate the danger, and the employer failed to do so; and
  • The employee refused to work in "good faith." This means that the employee must genuinely believe that an imminent danger exists; and
  • A reasonable person would agree that there is a real danger of death or serious injury; and
  • There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

Employers should also be mindful of Section 7 of the National Labor Relations Act. According to the NLRB’s website, Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities."

Whether a refusal to work is protected under the Occupational Safety and Health Act or constitutes protected concerted activity under Section 7 of the NLRA is a nuanced and fact-specific question. Employers should consult counsel regarding this issue.  

Telework

From a wage and hour standpoint, what challenges does teleworking present? 

• The Fair Labor Standards Act requires employers to pay non-exempt employees for all hours worked, whether those hours are worked on-site or remotely as part of a telework arrangement. They must also receive overtime for any hours in excess of 40 in a workweek. Employers should ensure that non-exempt employees who telework record all of their time worked, as well as time not worked. Employers may also consider adopting policies that restrict the number of hours that an employee can work per day or per workweek without prior company approval.  
• FLSA-exempt employees are not entitled to overtime, but (with limited exceptions) they generally must be paid for the entire workweek if they perform any work during that week. With exempt employees who are teleworking, employers should ensure that they are able to monitor productivity and availability. Although they generally cannot “dock” exempt employees’ pay, they can treat low productivity or lack of availability as performance issues. 
• Employers should also be aware of applicable state wage and hour laws regarding exempt and non-exempt status, daily overtime, required break time, and the like. 

What other concerns should be taken into account with teleworking arrangements? 

• Telework will not be appropriate for every company or every position. Employers who permit telework should do so pursuant to a comprehensive telework policy. Among other things, the policy should contain language regarding timekeeping procedures for non-exempt employees (as discussed above), expectations regarding working hours, and productivity standards. Employers should consider whether teleworking employees have been provided accommodations and whether those accommodations should be adjusted while the employee is teleworking. Also, some states have requirements for employees who work remotely. For example, California and Illinois have laws relating to reimbursement of business-related expenses. 
• From a data security perspective, employers should also ensure that employees are accessing the company’s system in a secure manner. Employees may be tempted to use unsecured networks (like public Wi-Fi), but companies should caution against using such networks and provide secure options like a well-maintained virtual private network (VPN). Employers should also guard against increased malware and phishing attacks related to coronavirus, including fake news, phony cures, or questionable charities. Companies should remind all employees to be on guard and report any suspicious communications. 
• Additionally, companies should consider technological options that could enable employees to avoid travel. Examples would include videoconferencing and apps that support long-distance collaboration. 

Unemployment

If our employees are laid off or furloughed, or their pay reduced, because of COVID-19, are they eligible for unemployment?

Eligibility for unemployment is generally state-specific. Please go to our State and local law section, which has details about some of the states. 

Wage and Hour

Does an employer have to pay employees if it is closed because of COVID-19? 

It depends on whether the employees are exempt or non-exempt under the federal Fair Labor Standards Act and any applicable state wage and hour laws. The following applies to the FLSA only: 

• Exempt employees: Exempt employees must generally be paid for the entire workweek if they perform any work during that week. (Limited exceptions may apply.) They do not have to be paid in workweeks in which they perform no work. One requirement for FLSA-exempt status is that the employee be paid on a “salary basis.” If an exempt employee performs some work during the workweek but the employer makes deductions from the employee’s pay for time not worked -- even if it is due to a facility closure -- the employee will no longer be paid on a “salary basis” and, in most instances, therefore will no longer be exempt.  
• Non-exempt employees: An employer is not required to pay non-exempt employees for non-work time. Thus, the FLSA does not require an employer whose facility is closed to pay non-exempt employees for the time that they would have worked if the facility had remained open. 
• Watch out for teleworking: Of course, time spent teleworking is “time worked” and should be treated as such, regardless of whether the employee is FLSA-exempt or not, and regardless of whether the employer’s facility is closed.  

Can an employer require employees who are not sick to use PTO or other paid leave while a facility is closed? 

Generally, yes. As long as it is not prohibited by the terms of the paid leave plan or applicable state or local law, the employer can direct employees to use available paid leave.  

Are employers required to cover additional costs that employees may incur if they work from home (e.g., internet, computer, extra phone lines, increased use of electricity)? 

• Employers may not require non-exempt employees who are covered by the FLSA to pay for or reimburse the employer for such items if doing so reduces the employees’ earnings below the FLSA minimum wage (including overtime). Further, employers may not require employees to pay for or reimburse the employer for such items if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act. State or local laws may give employees more rights in this regard than they would have under federal law. For example, California and Illinois have their own laws addressing this issue.  

May employers change their sick leave policies if too many employees are out and the employer cannot afford to pay them all? 

• Under most state laws, employers are generally free to prospectively change policies governing employee vacations days, sick days, and other forms of paid leave. However, employers cannot generally retroactively modify the terms of paid sick leave policies. If an employer offers paid sick leave—whether through a handbook, with an oral promise, or simply by day-to-day practice—some courts may even consider the offer a promise or implied contract to which the employer is required to adhere.   

If I bring in temporary employees through a staffing agency, is my company responsible for making sure that they are paid in accordance with the FLSA? 

• Under the FLSA, an employee may be employed by more than one individual or entity. If they are deemed “joint employers,” they may both be responsible for complying with the FLSA’s minimum wage and overtime requirements.   

Workers' Compensation

Can employees with COVID-19 file workers’ compensation claims? 

Employees may file claims if they believe they contracted COVID-19 at work, although that does not mean it is a compensable claim. Although workers' compensation laws vary by state, generally it will be difficult to prove work-relatedness because diseases to which the general public is exposed are usually excluded. That having been said, we are seeing more questions about employees who travel for work, or who  work in positions with heightened risks of exposure (for example, health care or emergency responders). Under current law, the increased "risk" even with these jobs is not generally sufficient to result in a finding of compensability. However, a number of states have or are considering changes to their workers’ compensation laws as a result of coronavirus. Most of these proposals would provide that a COVID-19 illness is compensable for health care workers and safety professionals (firefighters, first responders, police officers, etc.). In other words, those employees whose “front-line” job duties expose them to a greater risk of COVID-19 would receive the benefit of the presumption in those states based on these legislative proposals.  







Updated May 2021