The COVID-19 pandemic has dramatically changed life around the world, halting whole global industries while shutting down cities, regions, and countries. The necessity of shuttering a company due to the coronavirus has caused immense financial and personal distress in virtually all industrial sectors. Millions of workers no longer have jobs as their employers closed up their business before its staff could transmit the virus. For many companies, that stress will be ongoing until society contains the spread of the virus, a valid vaccine is issued, or both.
At the same time, millions of others have also remained on the job, continuing their daily work despite the virus that permeates their community. Some fortunate employees can work from home, where they can stay both productive and safe. However, the nature of work of others exposes them to risks that did not exist before the time of the COVID-19 pandemic. Many of these ‘essential‘ workers must continue clocking in, knowing that the style of their work or the people they serve might make them vulnerable to catching the coronavirus themselves. For these employees, the question of whether they can file a Workers’ Compensation (WC) claim because they got infected on the job remains unresolved.
When Not Working is Not an Option
‘Essential’ businesses provide or maintain the country’s fundamental infrastructure: its food supply, energy supply, healthcare services, and more. Without them, other essential workers who are actively battling the virus would have no resources available to sustain their effort.
From a WC perspective, however, these essential workers are regularly exposed to the virus while at work. Their employers are rightfully nervous about a variety of possible scenarios:
- If/when their worker gets sick, will their Workers’ Compensation insurance cover the claim?
- If there is available coverage, can it be mitigated or voided because of COVID-19-related circumstances?
- If there is no coverage, why does it not apply?
- Who or what will provide needed healthcare if the WC carrier denies the claim?
The challenge is heightened by the fact that liability issues may arise if WC coverage is not available. COVID-19 has created a nightmare scenario for both workers and employers, where neither group has an assurance that the systems they have in place will protect them if they are affected by the virus.
WC Standards Also Cause Confusion
Fundamental realities of settled WC law may or may not apply to COVID-19 cases, but they will certainly pose a hurdle to those who want to resolve these claims expeditiously.
At first blush, several initial questions come to mind:
- WC premiums are set based on the nature of the work and the class of occupation. The coronavirus concern may have changed the type of occupation if workers are now facing potential infections during their routine job tasks. Should premiums rise because of the virus to ensure coverage in the event of an infection? If premiums don’t change, will they still cover a COVID-19 claim that was not contemplated when establishing the policy?
- If a worker claims to have become infected at work, how do they prove that fact? In some cases, such as medical services providers and first emergency responders, there may be an evident and natural connection between work-related exposure and subsequent illness. But what about workers who are in occupations where that connection isn’t as clear, such as grocery store workers or gas station attendants? What level of proof must they provide to draw the line between their exposure and their infection?
- Another necessary determination is whether the onset of a COVID-related illness is an ‘injury’ per WC law or an occupational disease. For front-line workers – those who work with COVID-19 patients on a regular basis – the onset of illness may be deemed an occupational disease since their high exposure to it makes it more likely that they, themselves, would get sick. For those who aren’t on those front lines but who are working in an ‘essential’ position, for example, their sickness may be deemed an ‘injury’ if it is traceable to a single exposure that occurred while they were working. Their challenge would be to prove that the exposure did happen while they were in the ‘course of their employment.’
- If WC isn’t available or is denied, is the employer then exposed to liability for the affected worker’s healthcare costs? Would this situation mandate an investigation into potential ‘unsafe work practices’ on the part of the employer specifically regarding their handling of the virus threat?
Monitoring Medicare Concerns
Employers who have employees who are (or soon will be) eligible for Medicare, or who already have a Medicare Set Aside (MSA) account should be very attentive to those life circumstances while the pandemic remains extreme. In many cases, these workers are members of vulnerable populations due to their age, ethnicity, etc., and a coronavirus infection could prove fatal to them.
Both situations raise questions about how the healthcare system will engage with those workers if they become sick with COVID because of their job. They will also muddy the legal water around the extent of the employer’s mandate to cover the cost of work-related injuries or illness when those injuries occur due to a COVID-19 infection.
Eligible or Soon to be:
Workers who are moving onto the radar of the Centers for Medicare and Medicaid Services (CMS) because of their age or disability status must be conscientious about how they manage and record their risk of exposure to the virus. Most, if not all, of this population group will already have some form of pre-existing condition that will be covered by CMS funds once they begin drawing from their Medicare healthcare account. Assuming the worker can prove they became COVID positive while in the course of their employment, they’ll also need to specifically parse out the healthcare services received in response to that illness and attribute those costs to the WC funder. It’s crucial that they don’t bill CMS for those expenses. They should also note that the COVID-19 disease may exacerbate their pre-existing conditions, which may require long-term WC coverage through an MSA to cover the expenditures flowing from that element of their recovery.
Workers with Existing MSAs
These workers have an established MSA account for a previous on-the-job injury, and the care they receive for that should not be affected by the fact that they’ve contracted COVID-19. However, they should note that many healthcare facilities are overwhelmed by treating COVID cases, so their ongoing treatments may be delayed or postponed until after the pandemic subsides.
This situation also raises the question of what would happen if the worker caught COVID on the job, got sick, and developed permanent damage requiring long-term medical services. Would that worker need to pursue an independent MSA to cover those costs? Could they add those costs to their existing MSA and have the WC carrier increase that fund value?
Again, careful diligence about recording healthcare practices and adverse symptoms by both eligible and existing Medicare recipients will help them determine how contracting the virus at work will affect their Medicare or Medicaid funding in the future.
This coronavirus is changing virtually all aspects of American life, including how workers receive care for on-the-job injuries or illnesses. The patchwork of state-by-state WC laws will enhance the confusion as those industry stakeholders struggle to comply with both their local and federal regulations around WC injuries and healthcare services. One thing is certain, however: the COVID-19 pandemic will cause not only millions of illnesses but also changes to long-settled WC laws as employers, employees, insurers, and government work to ‘standardize’ an unmanageable situation.