COVID 19 Q&A PT 6: Am I liable if my employee gets sick with Coronavirus?

This is going to be Part VI of our COVID-19 Q&A. These are just questions that are coming in hot from our various employers and subscribers. We want to help before we dive in too deep. Today, what we’re going to be talking about employer liability concerning this worker’s comp, basically, and so we’re gonna go into kind of the ins and outs of that before we do though, please take a moment to subscribe makes a huge difference. You can subscribe on the pod catcher of your choice. That’s iTunes, Google podcast, Spotify, Stitcher, whatever. But also subscribe at peopleprocesses.com. Information is changing quickly. We’re providing tons of subscriber only content, like our sample communication letters furlough notices charts and explanations for quick reference, all sorts of sample policy versions of the FFCRA pieces. We want to get those out to you quickly. Podcasts are hard to get a lot of info out like that. So subscribe to People Processes for us so you can get a copy as well. 

All right, let’s dive right in. Here’s the first question. 

My employee may allege or it has alleged that they contracted the coronavirus while at work, will this result in a compensable worker’s compensation claim? 

This is the key question. And the answer is it depends if the employee is a healthcare worker or a first responder, the answer is likely yes (subject to some variations in state law), but in most cases absolute darn lewdly. For other categories of employees, an actual workers compensation claim is possible, but the analysis would be very fact-specific.

It’s important to note that the workers’ comp system is an unknowable fault system, meaning that an employee claiming a work-related injury does not need to prove negligence or anything on the part of the employer. Instead, the employee needs only prove that the injury occurred at work and was approximately caused by their employment. Additionally, the virus is not an “injury” but is instead analyzed under state law to determine if it’s an “occupational disease,” those vary. 

To be an occupational disease, (again with some state law variations), an employee must generally show two things: 

• the illness or disease must be “occupational”, meaning that it arose out of and was in the course of employment; and 
• the illness or disease must arise out of or be caused by conditions peculiar to the work and creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally. 

As for the other categories of employees, compensation for a workers’ comp claim is going to be determined on a case-by-case basis. The key point will be whether the employee contracted the virus at work and whether the contraction of the disease was “peculiar” to their employment. For example, if they were in full furlough, they never left their house ever. Period. No grocery. It’s nothing. The only time they came out was to work in your grocery store. Well, they could have a strong claim that if they get the disease, it’s from that. Even if the employer takes all the right steps to protect their employees from exposure, a compensable claim may be determined where the employee can show that they contracted the virus after an exposure, the exposure was peculiar to work, and there were no alternative means of exposure demonstrated. 

Absent any state legislation on this topic, an employee seeking workers’ comp benefits for coronavirus infection would still have to provide the medical evidence to support the claim. Employers who seek to contest such a claim may be able to challenge the allowance if there is another alternative exposure or if the employee’s medical evidence is speculative. 

Finally, employers should be aware that states are taking action on this issue. For instance, Washington Governor Jay Inslee recently directed the Department of Labor and Industries to “ensure” workers’ compensation protections for healthcare workers and first responders. I’m sorry for slurring. I have the worst allergies in my life right now. I promise it’s not Coronavirus, but anyway, just sniffle and a little bit. The directive instructs the department, the one from Washington to change its policies regarding coverage for those two groups and to “provide benefits to these workers during the time that they’re quarantined after being exposed to COVID-19 on the job” So states are going to change this up. They’re going to primarily target first responders and healthcare workers. 

So let’s kind of take a separate question that came in. It’s very similar. 

My employee contracted COVID-19 on a business trip for my company. 

Maybe they’re traveling and they’re one of those countries outside the United States where this is very more widespread. It’s going to depend on whether this is a competence level workers compensation claim. While an employee contracts a disease while traveling for business may be eligible for workers’ compensation in many jurisdictions, the analyst is going to be very fact-specific. In most states, the workers will still need to satisfy the test for compensability that we just went over. States often differentiate between exposures that occur while “working” during a business trip versus exposures that occur “during downtime.” Some states create almost strict liability for any injury that occurs in a business trip, whether the employee is working or not, it just depends on the state. But again, to establish a claim, the employee must, at a minimum, establish that they had an exposure to coronavirus while traveling for business, not while at home. Anything like this where you’re trying to find the claim is going to be exact, you need to have it examined on a case-by-case basis under advice of counsel under a lawyer. It’s just not something that can be done on a broad sample level like this. 

Next question.

What are the likely benefits an employee will be eligible to receive if the coronavirus is found to be compensable workers’ compensation? 

Okay. The good news is, except in rare circumstances, an employee diagnosed with the virus is not going to have any long-term healthcare problems. Therefore, medical costs associated with the claim are likely to be limited to the visits to the family physician and antiviral medications. More significant cases may involve hospital stays of two to three weeks.

The compensation costs should also be limited to the lost time associated with any recovery time. They may also be associated with loss time due to quarantine as required by the employer or local, state, or federal agencies. So that’s like 14 days while they’re hanging out to determine if they have it, while they’re waiting on test results, even if it comes back negative, those sorts of things could be compensable. 

There could be significant costs that are more extreme and rare situations that would normally involve complications from the virus. Those would be limited to claimants who are older or suffer from immune deficiencies,or there are cases where this has hit young people and they aren’t quite sick. Workers’ comp is, people don’t want to make claims and that’s a good thing. But the majority of workers’ comp costs come from long-term costs. Even a hospital stay of two to three weeks is expensive. It’s going to be covered by your workers’ comp, but that’s not going to have the same long-term impact on your workers’ comp costs. As they say, if they had to have a long remove they can never breathe right to do their job again for the rest of their life. And that’s such a small percentage, that’s unlikely would have happened in your case unless you’re a very large employer with a very large sample size. 

I hope this was helpful for you. I hope it kind of gave you some insight into what sort of liability you have. The long and short is if because of their job, they’re significantly exposed to the virus as a course of their work, then probably is going to be a workers’ comp claim. If not, they’d have to be on them to really prove that this was the way they got it. Thank you for tuning in. Again, My name is Rhamy Alejeal. You can find me, peopleprocesses.com Please Subscribe on there. It’s time for you to go out there. Have a great day and get your work done.

COVID-19 Q&A Part I, II, III, IV & V links here:

Part I – Should we send everyone to work from home with this Coronavirus?

Part II – I think an employee may be sick… what do I do?

Part III – Can an employee refuse to come to work because of fear of Coronavirus?

Part IV – If I layoff an employee, do I have to pay this new sick leave?

Part V – Does our group health insurance cover Coronavirus?