Worker Compensation claims during the Covid -19 Pandemic

Worker Compensation claims during the Covid -19 Pandemic

America appreciates the first responders who place their lives on the line every day during this C-19 pandemic. Unfortunately some of us become sick and some will die as a result of this exposure. For those who are working in this hazardous environment, there is an associated amount of stress that you may contract the disease and affect friends, co-workers and family members.

With much of the country in “quarantine” and our general ability to freely associate with others has been extremely limited: if we become ill with Covid 19 (C-19), what is our ability to file for worker compensation benefits during this pandemic?

Workers’ Compensation for the Coronavirus

Many states with worker compensation programs, there is a general exclusion for viral or bacterial illness if you can’t work due to an exposure on the job and the focus on worker compensation is limited to injury or other exposures while on the job.

States have recognized that for fighters, there are more exposures, other than viruses or bacteria’s, and have included diseases such as heart disease, respiratory disease, certain cancers, certain infectious diseases and PTSD. These are defined as presumptive illness and are compensable, due to the nature of the job and exposures. Recently, C -19 has been added to this list of presumptive illness in many states as those states have determined that because you contracted C -19 or were exposed to the coronavirus on the job, you might be eligible for workers’ comp benefits to include temporary disability benefits while in quarantine.

Of course your eligibility will depend on your specific state law and your specific circumstances. In order to claim your disability you will have to show that you were exposed while you were working and that your job presented a special risk of exposure, beyond the risk for the general public. This is where documentation of your exposure is so important. Healthcare workers and first responders are the most obvious examples of jobs with that kind of special risk.

Some states, such as New Jersey, Washington State, New York, and Florida among several others have guidelines and FAQs about workers’ comp coverage for C -19 changing the standard covered illnesses to include C-19 virus to ensure that those on the front lines are covered if they are exposed to the illness, are quarantined as a result of the illness and in some cases die as a result of the illness.

Legal Issues

The coronavirus pandemic has raised a number of legal questions for American employees, including with respect to workers’ compensation remembering workers compensation refers to the financial benefits paid out to an employee who is injured or becomes sick because of a work-related activity. If you contract C -19, now a covered disease exposure, do you qualify for benefits? As noted above, many states have modified their description of a covered claim and those can be found in the U.S. Department of Labor (DOL) web site that has a full list of state offices and contact information.

For example, defined under New York law, an “occupational disease,” is one “arising from the nature of employment and contracted herein” (See NY WCL §2 (15)).  Other states have similar criteria such as in New Jersey where employees must demonstrate that the “compensable occupational disease . . . arising out of and in the course of employment, which is due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment” (See N.J.S.A.34:15-31) 

In Florida, employers won’t have to pay out workers’ comp benefits unless the “disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease,” which must be proven through “medical evidence only, as demonstrated by physical examination findings and diagnostic testing” (See Florida Title XXXI, Labor §440.151(1)(a)) which is an interesting standard due to the fact that many of the physicians that can conduct those examinations and complete the worker compensation forms are closed due to the virus.

Another example is the Illinois Workers’ Compensation Commission issued an Emergency Amendment stating that for the next 150 days (after legislative approval), first responders or front-line workers, such as police, firefighters, paramedics, EMTS, as well as essential workers including in food production, grocery store services, and gas station operations, whose “injury, occupational disease, or period of incapacity resulted from exposure to the C - 19 virus.

In this emergency amendment there is a rebuttable presumption that the exposure was the result of an exposure arising out of the course of employment. That is to say, these essential personnel, who are highly susceptible to C-19 exposure, will be given the benefit of the doubt and it is assumed they became infected because of their jobs. However, they may be asked to prove that they actually had C-19 through documentation from a physician’s office.

In Minnesota, the Department of Labor recently enacted new protections for employees who have gotten sick with C-19 while at work. While nurses, doctors, paramedics, and other emergency responders are especially vulnerable to exposure while on the job, any Minnesota employee worker who can establish that an illness or disease was caused by a work exposure may bring a workers’ compensation claim.

Under the expanded Minnesota law, several categories of “presumptive” occupations are covered including, but not limited to:

• Healthcare providers, nurses, and doctors who contracted C-19 on the job in a hospital, home care or long-term care facility
• Paramedics, EMTs, fire fighters and peace officers who contracted C-19 while responding to an emergency call
• Childcare providers for the children of healthcare workers and first responders

Additionally, employees may be able to seek benefits if:

• You work in an office and contracted C-19 from a co-worker
• You work in a grocery store and contracted C-19 while performing duties and facing customers
• You work in a critical sector and have continued to perform your work-related duties despite potential exposure to C-19, including delivery drivers, utility workers, and others

Federal Employees 

Federal firefighters and employees, workers’ comp is governed by the Federal Employees’ Compensation Act (FECA), which has now been extended to offering benefits to those who contract C-19 through work-related duties. Under a similar rationale as other states, the DOL presumes federal employees who are engaged in “high-risk employment,” namely those who “have in-person and close proximity interactions with the public on a frequent basis,” such as police and first responders, were exposed to and ultimately infected with coronavirus while in the performance of their jobs.  Therefore, they will not be inundated with trying to prove that their coronavirus infection was caused by a workplace event.

For those federal workers whose jobs do not classify as “high-risk employment,” the bar is a little higher as they will be required “to provide a factual statement and any available evidence” as described in their benefits handbook related to occupational diseases. This includes job information as well as documented medical evidence “establishing a diagnosis of C-19” and whether the infection was “aggravated, accelerated, precipitated, or directly caused by the work-related activities.”  As the DOL explains, establishing the link between the C - 19 infection and your job might not be so simple:

Retaliation and Termination

Under the prevailing labor issues related to the C-19 issues and filing a claim, you are protected against retaliation that includes termination, threatened with discharge, or refused continued employment for seeking workers’ compensation benefits are protected by law from retaliation. Those front line employees or first responders who are retaliated against or fired could have claims for retaliation and/or obstruction.

Overall, it is a best practice that you your illness and file your claim as soon as you notice C-19 symptoms and are tested and diagnosed. In some states as noted above, first responders and health personnel do not need to offer proof that they contracted C-19 while on the job. It is presumed that these workers will be entitled to workers’ compensation benefits. Other workers will need to provide some proof that they contracted the illness while on the job.

Keep in mind that if you chose to stay at home but are not exposed to C-19 with a positive result, you will not be able to file for workers’ compensation.

LODD and PSOB

Unfortunately some first responders have died as a result of exposure to the virus. There has been a change in the eligibility under PSOB for death benefits to the survivors that now includes C-19. For those surviving families must establish that evidence shows that it is more likely than not that the disease resulted from the public safety officer’s performance of a line of duty activity or action caused exposure to the disease or the virus that causes the disease and subsequent death of the first responder. In general, Bureau of Justice Assistance (BJA) will find that the evidence showing a public safety officer with C-19 contracted it in the line of duty, when (1) the officer had engaged in line of duty action or activity under circumstances that indicate that it was medically possible that the officer was exposed to the C-19 virus, while so engaged; and (2) the officer did contract the disease, C-19, within a time-frame where it was medically possible to contract the disease from that exposure. In addition, in the absence of evidence showing a different cause of death, BJA generally will find that the evidence shows a public safety officer who died while suffering from C-19 died as the direct and proximate result of the disease.

This is a difficult topic to adequately present in a short article. It is imperative that firefighters and first responders take the necessary precautions to prevent exposure to this virus. If there is an exposure and you file for workers compensation, hopefully this short article points you in the right direction. In every event, check your worker compensation laws for your respective states and follow those guidelines.

Sometimes you may have to retain the services of an attorney to assist in your filing a claim and the process of being successful in your filings.

In any situation while filing a claim with your respective worker compensation agency, documentation of the exposure is of paramount importance. That documentation will be the cornerstone of a successful claim.

Stay safe out there.

Endnotes

https://www.nolo.com/legal-encyclopedia/free-books/employee-rights-...

https://www.dol.gov/owcp/dfec/regs/compliance/wc.htm#NY

https://lawandcrime.com/covid-19-pandemic/how-to-receive-workers-co...

https://www.baillonthome.com/news/employment/workers’-compensation-...

For Federal Employees - https://www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm

In California - https://www.labor.ca.gov/coronavirus2019/

In Washington State - https://esd.wa.gov/newsroom/covid-19-worker-information

FMLA for C-19 - https://www.dol.gov/agencies/whd/fmla/pandemic

PSOB - https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/ps...