Pandemics and Workers’ Comp
CAN EMPLOYEES INFECTED WITH COVID-19 FILE A CLAIM?
W orkers’ compensation laws vary from state to state, but typically, a regular disease that the general public is exposed to is not considered an occupational disease. For example, an employee wouldn’t be compensated for a claim if they caught a cold from a coworker. However, COVID-19 is not what we would classify as a “regular” disease. When the World Health Organization declared COVID-19 a pandemic, businesses were encouraged to take precautions to protect their employees and their customers. In some states, this meant nonessential businesses that could not transition to remote work were forced to close entirely. Meanwhile, employees who were deemed essential were required to still go out and interact with the public in order to do their jobs. Given these conditions, could essential employees who become infected with COVID-19 file a workers’ comp claim? For federal employees, the answer is simple. The U.S. Department of Labor has stated that “all federal employees who develop COVID-19 while in the performance of their federal duties are entitled to workers’ compensation coverage pursuant to the Federal Employees’ Compensation Act (FECA).” However, this does not answer the question of workers’ comp for nonfederal employees who have been deemed essential in their states. Can medical providers or even grocery store cashiers — both positions that require interaction with the public and that put workers at higher risk of contracting the virus — file a workers’ comp claim if they become infected while on the job? This is a difficult question to answer. In order for an illness to be covered under workers’ comp, it must meet the criteria of an occupational illness. There are two tests to determine this: 1. The illness arose within the scope and course of employment duties. 2. The illness must be the result of conditions “peculiar” to the employment duties. (See more below.)
In an article published by the Insurance Journal, Chris Boggs, executive director of the Independent Insurance Agents and Brokers of America Virtual University warns that these tests are often subject to interpretation based on various state laws. And during this crisis, it’s entirely possible that governors, and legislatures or workers’ compensation commissions could change or modify existing state laws to “force” coverage. “Qualifying as ‘occupational’ is the low hurdle,” Boggs writes. “The higher hurdle is whether the illness or disease is ‘peculiar’ to the work. If the illness or disease is not peculiar to the work, it is not occupational and thus not compensable under workers’ compensation. An illness or disease is ‘peculiar’ to the work when such a disease is found almost exclusively to workers in a certain field or there is an increased exposure to the illness or disease because of the employee’s working conditions.” A noteworthy example of a disease that is peculiar to working conditions is coal workers’ pneumoconiosis, better known as black lung. In the course of their work duties, coal miners breathe in higher-than-normal levels of coal dust. This can lead to any number of lung diseases, which makes black lung disease peculiar to the coal mining industry. What does this mean for the COVID-19 pandemic? Ultimately there is no hard and fast rule. While essential employees certainly have a peculiarity about their work duties that increases their risk of exposure during a pandemic, any claim will be assessed individually, based on the facts of the case. A nurse who became ill after working with COVID-19 patients may have a stronger case to file a workers’ comp claim than a grocery clerk who cannot prove they were infected by a customer in the checkout line. A final note of caution: If you are confronted with this situation, we reccomend turning the potential claim over to your carrier and letting them determine whether or not it is compensable.
Have a Laugh!
Easy way out on pg. 4
Specialized Insurance Programs for Specialized Industries. • www.INSURICA.com • 3
Made with FlippingBook Annual report