By now, it's incredibly rare to have a day go by without the mention of COVID-19. This worldwide pandemic has changed our lives in countless ways, and it's likely to evoke further changes before some semblance of normalcy returns.
In addition to concerns about protecting our health and safety during uncertain times, employers are facing questions about how to best protect their employees and places of business. As a local business that supports employers across all industries throughout the nation, we understand that employers may also have questions about employee exposures and absences related to COVID-19, especially those who may be exposed to the virus as part of their customary work duties.
While workers' compensation insurance is in place to provide coverage for employees who become injured or ill in the course and scope of performing their job, a worldwide pandemic presents novel challenges. There is no universal rule on the compensability of a workers' compensation claim related to contraction of the COVID-19 virus. In cases such as this, compensability decisions would generally look to prior case law to help determine the appropriate next steps about compensability of an employee's workers' compensation claim. In this environment of navigating unchartered waters daily, there is no case law to guide us.
As a general rule, while it is possible for COVID-19 to be a compensable workers' compensation injury or an occupational disease, compensability will depend upon the facts of each case, the jurisdiction's definition of injury and/or occupational disease, and that jurisdiction's case law. As always, the burden of proof will lie with the employee to show that the contraction of the virus is causally related to their employment. Employers are encouraged to notify their workers' compensation insurer if an employee tests positive for COVID-19. Because COVID-19 is an ordinary disease of life, as with all reported claims, a thorough and complete investigation will be necessary to determine work-relatedness and make compensability decisions.
So, what should you do as an employer if an employee tests positive for COVID-19? It is vital that you keep detailed data on illness-related absences and any confirmed cases among your employees. The following facts will be key:
• Date of reported illness
• Date of first symptoms
• Date(s) of illness-related work absences
• Date(s) of quarantine if suspected exposure
• Name(s) of other employees and family in close contact
These types of questions may be outside the scope of customary questioning related to a workers' compensation claim and should be included in the investigation. It will be crucial to pinpoint the moment of occurrence as soon as possible.
It is our recommendation to continue to follow the direction of the Centers for Disease Control (CDC), the Occupational Safety and Health Administration (OSHA), and local authorities for the ongoing management of the COVID-19 virus. Without healthy workers, organizations cannot operate effectively. Additional guidance, contingency plans and processes may become necessary as the impact of COVID-19 continues.