The COVID-19 pandemic has impacted employers and employees across every industry with healthcare workers among the most vulnerable as they are on the front line treating and caring for patients. How many of these workers will be infected and unable to work remains unclear as is the number of claims to be filed under Workers’ Compensation for occupational diseases. Compensability for occupational diseases varies per state with some statutes excluding “ordinary diseases of life” (such as the common cold and flu). In addition, in some cases it may be difficult for employees to prove they contracted the coronavirus at work. Test shortages at the beginning of the COVID-19 crisis in part will make it hard to know if workers contracted the virus as part of their day-to-day work.
Some states have already begun to address whether Workers’ Compensation would step in and cover healthcare workers. For example, Minnesota recently passed and signed legislation expanding Workers’ Compensation eligibility for emergency first responders and front-line workers during the COVID-19 pandemic. The bill, H.F. 4537, expands eligibility for front-line workers by creating the presumption that a COVID-19 infection is work-related, unless the employer is able to prove the infection happened elsewhere. Front-line workers include doctors, nurses, firefighters, paramedics, police, long-term care workers, home health workers, correctional officers, and childcare providers. The legislation is effective April 8 and is in place until May 1. In Washington State, Workers’ Compensation protections are extended to health care workers and first responders under quarantine for COVID-19, and include benefits for medical testing, treatment expenses if a worker becomes ill, and time-loss payments for those who cannot work if they are sick or quarantined.
When Workers’ Compensation does not apply, employees who become ill with the coronavirus may seek to sue their employers, claiming that the exposure was caused by the willful act or omission of their employer. The definition of “willful” for Workers’ Compensation purposes differs from state to state. Employer’s Liability insurance (Part B of Workers’ Compensation coverage) covers an employer’s liability for any bodily injury claims that fall beyond the scope of Workers’ Compensation laws. Numerous policy exclusions may apply in such a scenario, however, and the facts of the case must be considered on an individual basis.
Whether a COVID-19 claim is ultimately deemed compensable under Workers’ Compensation insurance, OSHA requires employers to protect employees from physical harm at work and report occupational disease claims. If an employee becomes infected at work, in some circumstances the employer may face penalties. In addition, employers who don’t have adequate communicable-illness policies and response plans in place could be exposed to lawsuits related to Workers’ Compensation (as stated above), invasion of privacy, discrimination, unfair labor practice, and negligence.
Minimizing Risk of Infection in the Workplace
There are measures employers should be taking to help minimize their employees’ risk of infection, including the following, courtesy of Harvard Business Review:
- Be sure to follow officially recommended and mandated actions by local and state jurisdictions and authoritative sources such as the Centers for Disease Control and Prevention and the World Health Organization. Stay up to date with the latest recommendations and mandates.
- Provide employees with reliable information on preventing the spread of infection.
- Ensure employees have easy access to hand-washing facilities and/or hand sanitizers and that public surfaces are regularly disinfected.
- Provide employees with masks and gloves.
- Instruct staff to inform management if they have been exposed to the virus or show symptoms of infection, or if they, or a member of their household, have particular vulnerabilities such as a weakened immune system that may require enhanced protections from infection. Staff with symptoms of infection should be sent home or instructed to stay home.
Home healthcare workers should also follow specific protocols to minimize the risk of getting infecting. You can find several of these guidelines here.
Manchester Specialty Programs specializes in providing agents and brokers with totally integrated business insurance solutions to meet the needs of Home Care, Allied Health and Human/Social Services organizations. For more information about how our products and services can help protect your insureds, please contact us at 855.972.9399.