For America’s employers, the COVID situation is creating havoc. Those who have shuttered their businesses for the duration of the crisis may not be able to open again once it subsides. Those who are open, however, especially those that offer essential services like grocery stores, are finding themselves facing workers’ compensation (WC) concerns that are unique to this pandemic. These businesses are already facing the challenges that typically arise from public crises and their subsequent recessions. Now, they must also navigate the new world of work-related injuries and illnesses directly related to the COVID-19 virus itself.
Nowhere is that concern more significant than in those companies whose workers are on the front lines of the challenge.
The healthcare industry, as a whole, is reeling from the effects of managing the virus. Not enough supplies and too many patients have overwhelmed entire healthcare systems. As the pandemic evolves, healthcare workers themselves are contracting the disease caused by the virus, which reduces the number of people who work in the clinics and wards. Further, the virus is not only impacting the capacity of the medical professionals, but it is also compromising the capacities of lateral and support services upon which they rely, such as lab services, clinic technicians, and even the janitorial crews. Employees working in a healthcare setting or with healthcare professionals are exposed to a heightened risk of being infected with the virus.
Community services providers aren’t immune from the concern, either. Firefighters, ambulance personnel, and distributed healthcare clinic workers, as well as the staff who work with them, are also exposed to the virus through their work. Frequently the first on the scene of a healthcare crisis, these workers face any number of threats posed by the environments in which they find their patients, in addition to the threat posed by the virus, all of which increase the likelihood that they will suffer an injury or illness while on the job.
Essential Services Personnel
Services deemed ‘essential’ are those that provide the goods and services people need simply to survive even when there isn’t a viral threat in the air. Grocery stores, gas stations, pharmacies, and the like provide vital supplies that keep communities functioning. However, every day, their workers face health threats posed by shoppers who are infectious but not yet symptomatic, a circumstance that is unique to COVID-19. Without knowing they are infected, these workers can infect their coworkers and customers for days before they become symptomatic themselves.
The organizations and businesses that employ these vital workers must now attempt to prevent the virus from causing illness or injuries in their workplace. The fact that there is still much that is unknown about the virus and few proven resources available to avoid or combat it makes their jobs that much more difficult.
Consequently, today’s employers are not just facing increased WC and SSDI claims due to the unemploymentcaused by the coronavirus, but they are also facing a new wave of a different type of WC created by the health threats caused by the virus.
COVID Will Change WC Litigation
The unique and evolving constellation of symptoms and conditions caused by the virus are not just confusing medical personnel, however. Legally, there are new challenges presented by the virus that have never before been seen by the WC and legal systems. As cases flowing from these issues mature and claimants seek support as they recover, their claims will most likely change how work-related COVID cases – and cases originating from the pandemic itself – are managed in the legal setting.
Legal Cause Concerns
One fundamental legal mandate will trigger much of the incoming legal deluge: proving ’cause.’ The legal system flows from a simple relationship: cause and effect. Lawyers must identify the cause of a legal issue and connect the damage that it creates (its effect) directly with the entity presumed responsible for the action or situation where the injury or damage occurred. Defenses to the ’cause’ element center on two possible options: nothing the defendant did (or did not do) caused the injury, and/or the claimant themself contributed to the cause of their own damages.
COVID cases confound this fundamental legal concept because, in many cases, there’s no way to prove with certainty that any one location or exposure ’caused’ the transmission of the virus. Yes, healthcare personnel are more likely to contract the virus because of their exposure to it through their occupation or workplace. However, science has determined that asymptomatic people are spreading the disease – people who show no evidence of being sick. So, while, yes, healthcare workers are more likely to contract the disease at their workplace, they also live in a community where the virus is active. These workers are also susceptible to contracting the virus through their interactions at home, while at their grocery store, or any place where they may come in contact with an asymptomatic person.
The virus’s capacity to spread via non-symptomatic people makes it extremely difficult to assign ’cause’ to one specific entity or location. This challenge to proving ’cause’ poses new questions to all parties to a WC case:
- For WC claimants, the legal challenge moving forward will be to establish, with certainty – that their COVID-related injuries or damages are directly connected to their actions on the job.
- For employers, especially healthcare employers, the challenge is that virtually every staff-person-COVID case will have an assumption that it is work-related. Companies will find it difficult, if not impossible, to determine where, if not at work, the claimant was exposed to the disease.
- For insurers, the inability to determine the specific cause of the claimant’s illness or injury will undoubtedly create economic challenges as the number of healthcare-based, COVID-related cases increases.
As if the legal challenges aren’t tricky enough, WC cases will also face challenges posed by the increased flood of local, regional, and national legislative efforts to stem the spread and contain the damages caused by the virus. Every state has been scrambling to manage their specific COVID crisis, with many passing laws and emergency regulations on a weekly (or sometimes daily) basis.
However, these short-term legislative fixes address only the crisis of the day. In many (if not most) cases, their potential long-term impacts have not been fully vetted, and those who act in accordance with the new rule may create additional challenges and liabilities in the future.
These issues and more will be the subjects of an increasing number of litigations as future lawsuits and WC claims are processed in the coming months and years.
MSA Litigations May Also Increase
Increasing numbers of COVID-related WC claims will almost certainly prompt a rise in MSA applications, as claimants seek as much coverage as possible for future services related to their COVID injuries. In these cases, it will be even more important to consider the interests of the Centers for Medicare and Medicaid Services (CMS) when crafting those MSA documents. As the Mandatory Secondary Payor, CMS is not authorized to spend Medicare resources on health conditions caused by or the responsibility of a third party. The ‘COVID cause’ concern will pose challenges in these cases, too, if there is an insufficient declaration of cause in the MSA application.
(On a side note, the COVID crisis may also trigger a rise in Social Security Disability Insurance (SSDI) claims, too. The number of those cases also rises in the aftermath of a societal crisis. These SSDI claims will also be plagued by the ‘COVID cause’ challenge insofar as science has yet to determine if the virus can cause permanent disabilities as well as as-yet-undiscovered injuries and illnesses.)
The COVID-19 virus has already caused countless job-related injuries and illnesses in businesses and industries across the country. It is on track to generate thousands more before healthcare and scientific resources can fully contain it. Even without the myriad of legal challenges it is engendering, the related WC claims it will generate will also trigger the demand by both injured parties and the CMS to develop comprehensive MSA applications to manage the costs of covering those injuries. As the country works through both the pandemic and its ensuing recession, the coronavirus of 2019-2020 will almost certainly restructure how America’s workers’ compensation and Medicare Set Aside sectors operate in the future.