Treating COVID-19 as a workers’ comp illness may open a can of worms

Employers and insurance carriers have already begun to see workers’ compensation claims as a result of COVID-19 illnesses, and aren’t always sure how to respond. Should the claim be accepted as a compensable “occupational disease,” or denied as a risk the general public faces regardless of work activities? As with most COVID-19-related issues, the answer will depend on the specific facts. Further complicating things, the legal landscape for COVID-19-related workers’ compensation claims is changing with pending or enacted legislation in a number of states.

The COVID-19 pandemic continues interrupting the daily lives of Americans. As of April 16, the U.S. Department of Labor reported that another 5.2 million Americans filed for unemployment benefits, bringing the total number of claims during the last four weeks to a whopping 22 million. According to Stateside’s State Government Overview Report, state legislators have introduced more than 110 bills related to paid sick leave, appropriation requests, and worker protections. The Report also says that nearly 900 executive actions have been issued by governors attempting to respond to the continuously evolving environment. States also have issued emergency regulations for insurance carriers to address labor and wage issues, and other problems caused by the pandemic. For those businesses with employees still coming to work, COVID-19 workers’ compensation claims are becoming more likely.

What constitutes a valid workers’ compensation claim varies vary from state to state. Generally, for an injury or occupational disease to be considered payable, the condition must be “connected to” the employment. Before coronavirus, determining whether a particular illness was incidental to the employee’s work usually involved a determination of whether the employee was exposed to a greater risk of illness than the general public. Many states’ workers’ compensation laws exclude “ordinary diseases of life,” such as the common cold or the flu, from payable workers’ compensation claims.

Now states are taking another look at whether their laws should change. At least nine states have or are considering changes to their workers’ compensation laws as a result of the coronavirus. Most of these changes provide presumptions that a COVID-19 illness is a compensable workers’ compensation illness 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.

The states that have taken steps to address this issue include Alaska, California, Illinois, Louisiana, Massachusetts, Minnesota, Pennsylvania, South Carolina, and Washington. Details about the specific actions taken by these states can be found in a recent post by the Insurance Journal.

There now is a push to include other “front-line” workers, such as employees working in grocery stores, restaurants and pharmacies, as well as other workers performing “essential” jobs. But determining where to draw the line will be tough. Should the presumption apply not only to “front-line” workers, but all employees of any business that meets the state’s specific definition of an “essential business”? If so, how would one determine which, if any, of those employees truly were exposed to “a greater risk” while at work? If all “front-line” workers receive the benefit of the work-related COVID-19 presumption some say is warranted, would there be a distinction between grocery stores and pharmacy employees, without which life could not be sustained during this pandemic, and “essential businesses” such as those in the construction industry, transportation industry, and others?

How would one determine whether the employee’s COVID-19 illness is “connected” to the particular hazards of the employee’s work, rather than the same risk that any member the general public would face? And, how would one determine whether the employee became ill while working, as opposed to while grocery shopping or from exposure to a friend or family member?

The U.S. Department of Labor seems to agree that connecting the coronavirus illness to an employee’s work may be a difficult task. In a recent announcement, the DOL advised that most employers will not have to include COVID-19 cases as recordable incidents for OSHA recordkeeping purposes absent “objective evidence” establishing the work-relatedness of the illness. The announcement acknowledged that determining whether a worker contracted COVID-19 while working is difficult, given the ongoing community spread of the disease.

Many industries are suffering greatly from unprecedented layoffs, closures and other financial strains related to the coronavirus. Expanding workers’ compensation liability while business owners struggle to keep the doors open and workers employed may do more harm than good. Policymakers should keep in mind that presumptions given may be difficult to take away once the emergency has passed.

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