Employer Liability & COVID: A Tale of Two States

As is typical in every state-based worker's compensation (WC) case, determining relevant legal factors requires a balance of both state and federal law. The arrival of the COVID-19 pandemic and the workplace challenges it poses require employers to perform that same federal/state balancing act when their workers contract the disease.

However, the WC rules in each state can differ significantly from those of their neighboring states. Because of those disparities, how individual states are reacting to the health concern can dramatically impact the services and support employees might receive should they contract the illness at work. For example, Florida and Georgia are responding differently to the viral concern, which impacts the possible resolution of their WC cases. WC cases with similar fact patterns that arise in the separate states may resolve entirely differently based on where the injury/illness occurred.

No Federal WC Law ... There is no federal law that requires each state to have a WC capacity; every state has established its own WC industry. (The federal government itself has also established a WC system for workers who work in federally based jobs.) The consequence of having no federally defined WC requirement is the development of a loose, state-based network of WC laws and practices that operate differently from and independently of those found in the other states.

In some ways, the lack of standard, nationwide WC regulations is good because it allows the citizens in each state to determine the depth and breadth of their WC rules. In other ways, the lack of uniformity causes problems, as states make different determinations about whether their laws will include or exclude specific injuries or illnesses from WC protections.

... But Yes, Federal Occupational Safety and Health Law

While the federal government doesn't regulate WC issues per se, it does regulate how employers maintain their workplaces to keep their employees safe while at work. The 1970 Occupational Safety and Health Act (OSHA) established a 'general duty' clause that incorporates worker health and safety rules that are applicable in all states. It requires each employer to keep its workplace "free of recognized hazards that can or are likely to cause death or serious physical harm." The intent is to reinforce the basic principles set out in the state-based WC statutes: employers are responsible for the costs incurred when employees suffer injury, illness, or death while on the job.

Consequently, because the federal government enforces workplace safety rules and state governments enforce WC rules, employers must navigate between the two when

setting up the safety standards for their employees and then maintain those compliances when work-based injuries or illnesses occur. In many, many cases, a state-based WC case becomes more complicated and complex based on how its rules interpret and apply the relevant federal statutes.

(A relevant side note: there are federal laws that every state must follow because they flow from constitutional principles, such as those that prohibit discrimination against pregnant workers or workers with disabilities, as just two of many examples.)

WC Laws and the COVID-19 Pandemic

The lack of uniformity of WC rules across state lines has exacerbated the confusion around potential WC coverage for covid infections, causing significant consternation to many injured or ill workers who believe they may have contracted their COVID-19 illness while at work. The discussion centers around two critical points:

1. Do the states' WC laws provide guidance to include or exclude coverage for potentially work-caused COVID infections as a matter of course? In some states, an illness contracted due to exposure at work is considered a work-related illness and is covered. In other states, legislatures considered the virus to be within the class of 'routine community spread' diseases such as the flu, chickenpox, or measles. Community spread diseases are typically not considered covered by WC insurance.

2. If WC insurance doesn't automatically cover the costs of the illness, is there some circumstance at the place of business that increases the risk of contracting the virus, whether that's by the nature of the work or through a lack or lapse of compliance with proper safety protocols? Negligence or recklessness regarding COVID protections on the part of an employer may trigger WC coverage anyway or give rise to a separate civil claim for damages.

Having WC coverage for a work-related illness, including COVID-19, offers significant benefits for workers:

· It can provide supplemental funding to replace lost wages when local mandates require the worker to quarantine because of exposure or contraction of the disease.

· It can also cover medical and healthcare costs for care and treatment of the disease, which can be especially high if there's hospitalization involved.

· It may also provide a basis for long-term medical care and costs if the ill person develops long-term symptoms or permanent organ damage from the virus.

· For workers who are also Medicare recipients (or within Medicare eligibility limits), having employer-supplied WC insurance to manage covid-related health concerns alleviates any future challenges that may arise with their Medicare benefits. The Mandatory Secondary Payer Act (MSA) prohibits Medicare from paying for healthcare expenses that are legitimately the legal obligation of another party.

Not having WC insurance coverage for a COVID infection eliminates these supports for workers who cannot work because they've contracted the disease.

Because of these critical factors, and even with the federal governance in place, how a state government elects to manage its internal WC laws can profoundly affect how well its labor force withstands and survives the pandemic.

Florida and Georgia: A Tale of Two States Florida and Georgia present two very different WC perspectives that provide a good contrast for how, despite a common workplace safety mandate, workers in one state will (most likely) do better through the COVID crisis than those in the other.

How They are Similar

In many ways, the two states are similar regarding their policies for WC insurance:

· Florida requires every business with four or more employees to carry WC insurance; construction businesses in the state must cover all employees, regardless of their number and even if they are contractors and not employees in the technical sense.

§ Georgia requires companies with three or more workers to carry the insurance.

· Florida requires coverage for part-time workers unless they are independent contractors not employed in the construction industry.

§ Georgia includes part-time workers within its 'employee' classification.

· In both states, achieving a WC claim resolution usually happens through a negotiation between the injured worker, the employer, and the insurance carrier.

§ In Florida, these negotiations encompass all aspects of the case.

§ In Georgia, settlements fall into two classes:

§ a liability class that resolves all the liability concerns with the insurer making the required payment, and

§ a non-liability class that results in a closed case even when there's a dispute about 'benefit eligiblity' amongst the stakeholders.

· Both states have statutes of limitations for their WC rules, which govern when an injured worker can file a claim after an injury or an injury-related event. With a few exceptions, Florida claimants have two years to file claims for WC benefits, to receive medical care, or for lost wages.

· Georgia divides its limitation statutory provisions into three provisions:

· Injured or ill workers have one year from the date of injury to file a claim;

· If the worker receives temporary, total, or partial disability benefits that end, they have two years after that date to file a claim, and

· Each injured employee has one year after receiving a bill for medical treatment to submit it to their employer or the insurance company.

Both states will assess civil or criminal penalties on companies that fail to carry WC insurance or to follow the rules within those jurisdictions.

How They are Different

While the two states mandate similar but not identical standards for worker's compensation purposes, they differ significantly in their determination as to whether they consider a COVID-19 infection a 'work-related injury' to trigger WC coverage.

Florida In Florida, in Spring 2020, 2020, the Chief Financial Officer issued a directive (2020-05) declaring a presumption of WC coverage for that the state's 'Frontline State Employees' who test positive for COVID-19. The directive defines 'Frontline State Employees' as workers who 'require substantial contacts with populations known to or suspected of carrying a COVID infection.' Those workers specifically identified in the directive include police and law enforcement officers, firefighters, emergency medical technicians, paramedics, those who work in the healthcare field, corrections officers, and the FL National Guard members. The directive also contains a clause allowing for the state to deny coverage if it can prove that the sickened worker did not contract the infection while on the job.

Within months, however, the challenges of trying to provide healthcare support for a very indiscriminate illness became apparent. By the end of July 2020, nearly 12,000 Frontline employees had filed for WC benefits due to a COVID infection (65% of all claims made within the previous four months), but state insurers have refused all or some coverage for almost half of them. Despite the consequent uncertainty roiling the state's business community, state lawmakers have not stepped in to address the situation.

Georgia

Unlike Florida, Georgia has not designated any individual occupation as one that is at higher risk of a COVID-19 exposure, so there are not yet any declared presumptions on behalf of frontline workers.

Instead, in August 2020, the Georgia governor signed into law the Georgia COVID-19 Pandemic Business Safety Act, which actually shields employers from liability for both workers and patrons who contract a COVID infection while on the business's premises. The law creates a presumption that anyone who enters a publicly open business or facility during the time of COVID-19 assumes the risk of contracting an infection. Therefore, the business owner is not liable for their illness, any injury it causes, or medical costs it incurs.

Remarkably, even healthcare facilities gain protection from liability unless their claimants can prove "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm" regarding contracting a COVID-19 while on the facility's premises.

Conclusion

At the heart of the WC/COVID liability question is the reality that no one - not employers, employees, or WC insurers - considered the possibility of a global pandemic when establishing the terms and parameters of the WC agreement. Add that confusion to the already delicate federal/state law balancing act, and it's become clear that employers, employees, and lawmakers will have a more difficult time resolving WC claims arising from a COVID infection. It appears certain now that the COVID pandemic will trigger a significant litigation boom, and that employers – in Florida, Georgia, and across the country – will have an even bigger struggle making sense of their roles in the worker's compensation/worker health and safety arena.

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