What happens if while you are open for business, one or more of your employees contracts COVID-19? What happens if one or more of your employees is exposed to another of your workers that had COVID-19? Is that a work-related illness covered by workers’ comp? Isn’t it a work-related illness? If it is, then the employee’s sole recourse is to file a workers’ comp claim, right? Under workers’ comp, the employee’s medical coverage and lost wages are covered, and, if the employee dies, expenses related to the death are covered. In other words, an employee can’t file a lawsuit seeking millions of dollars. Workers’ comp is the employee’s sole recourse. There are no lawsuits. That’s the point of workers’ comp. So if an employee contracts COVID-19, is it covered by workers’ comp? Here is where I invoke Attorneys’ Stock Answer Number One: It depends. This is where you start to groan. Bear with me though, read on, and I’ll explain… Let’s start with the basics: For an injury or illness to be covered by workers’ compensation, it has to be connected to employment. What does that mean though? Pre-COVID-19 that meant one had to determine whether the employee, by reason of the job was exposed to greater risk than the general public. Many states’ workers’ comp laws exclude “ordinary diseases of life” (e.g. cold, flu) from the definition of payable workers’ comp claims. These points probably raise more questions than they answer.
With the exception of those working in health care, law enforcement, or firefighters, one could argue that most people are not at greater risk of COVID-19 solely by reason of their job than the general public. In fact, at least some states are considering changes to workers’ comp laws where COVID-19 is presumptively work-related for those working in the aforementioned professions. As for the “ordinary diseases of life” exclusion, I doubt anyone would argue that there is anything “ordinary” about COVID-19.
What about others working in “essential” jobs, such as grocery store workers or pharmacists? Don’t they have greater exposure to the public, and therefore greater potential exposure to COVID-19? Even if all “essential” workers were now to be included as those for whom COVID-19 would be presumptively work-related, can one ever really know if the illness truly arises out of work or if the workers still really faced the same hazards as everyone else? Clearly those in healthcare, safety, and law enforcement fields would be more at risk. But what about the others? Even the DOL says that it would be hard to make such a determination. In fact, the DOL recently announced that for most employers COVID-19 cases would not be reportable for OSHA recordkeeping purposes unless there is “objective evidence” showing that the illness is in fact connected to work.
If the illness is not deemed work-related, and therefore not covered under workers’ comp, there are downsides for both the employer and the employee. The employee doesn’t get the benefits for lost wages or medical care. S/he would probably get some paid leave under the FFCRA and any applicable state/local laws. The employer, however, would not be shielded from lawsuits if the employee claimed that in fact s/he was exposed at work and that the employer failed to take appropriate measures to minimize his/her exposure. But wait a minute. That’s a lawsuit under tort law principles. Under those principles, someone can’t be held liable for harm or loss arising out of something unforeseeable, right? What employer could have foreseen COVID-19? That argument may have merit in a number of claims, but not for everyone. If there had already been at least one worker with COVID-19 and the employer knew and if the employer still didn’t take steps to limit other employees’ exposure, that argument might not hold up. If the CDC’s prediction of a second, more devastating wave in the winter proves correct, then for later exposures it again may not hold up.
OK, let’s get back to workers’ comp for a minute. Workers’ comp laws usually exclude injuries or illnesses arising out of an employer’s intentional acts. What makes an act ‘intentional’? Again, it depends on what the particular state’s workers’ comp laws say. Some states’ laws would say that if the employer had ‘knowledge to substantial certainty’ of the risk in question, then failure to mitigate the risk would be an intentional act.
So what does all this mean for you? If you employ people in a state that passes legislation amending the workers’ comp laws to include “essential workers” as those presumptively exposed to COVID-19, and if any of your employees are “essential workers” within the meaning of a state stay-at-home order, and they contract COVID-19, you will see more workers’ comp claims. On the one hand, you are less likely to be facing time-consuming, very expensive lawsuits. On the other hand, you will be dealing with more workers’ comp claims, and at some point, higher premiums. In either case, it’s in your interest to do whatever you can to minimize your employees’ exposure to COVID-19. The fewer such exposures you have the fewer cases (whether workers’ comp or lawsuits) you will have.
Here are some steps you can take:
- Follow CDC guidelines. You can find them here;
- Figure out how many jobs can be performed remotely and let those employees work from home;
- Make reasonable efforts to ensure that as many jobs as possible can be performed remotely, at least on a temporary basis. For example, re-route calls to another location if that is the main or sole reason you are requiring an employee to show up to work;
- Keep employees at least 6 feet apart from each other and those in the public;
- Provide masks and gloves;
- Send home any employees who experience COVID-19 symptoms and get confirmation that they have been symptom-free at least 3 days before they return to work;
- Do whatever else you can think of to promote health and wellness in your workplace.
If you take these and other reasonable steps, you are in a better position to minimize exposure, which in turn will hopefully minimize either workers’ comp claims or lawsuits. This pandemic has required–and will require–all of us at one point or another to re-think many of our basic assumptions. For employers, it may require them to re-think established and even cornerstone practices. Beyond the legal issues and in addition to revenue, a business cannot stay afloat without good — and healthy- employees.
Hang in there everyone, and stay healthy and safe!
Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?
Watch my television interview on Stop My Crisis with Vivian Gaspar.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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