As we discussed in an earlier article, many states (18 as of June 2) have changed their laws or issued executive orders in the wake of the COVID-19 pandemic requiring Workers’ Compensation insurers to cover “essential workers” who test positive for the virus. The definition of “essential worker” varies in each of the states that extended presumptive eligibility to include coverage for an infectious disease such as the coronavirus. These employees include health care workers and first responders in some states while in others, the law extends to a wide range of occupations. According to the NCCI, the presumption legislation generally falls into three categories:
- Bills that establish compensability presumptions for first responders and/or certain health care workers.
- Bills that establish compensability presumptions for essential or frontline workers. These proposals cover other occupations that may be exposed to COVID-19 such as grocery store workers and pharmacy workers. Several of these proposals are also applicable to first responders and health care workers.
- Bills that establish compensability presumptions for all employees in the state.
According to Kaiser Health News (KHN), “In some states, medical personnel account for as many as 20% of known coronavirus cases. They tend to patients in hospitals, treating them, serving them food and cleaning their rooms. Others at risk work in nursing homes or are employed as home health aides.” As of August 10, 922 health care workers likely died of COVID-19 after helping patients during the pandemic.
The reason behind the change in the presumptive laws that many states have adopted amid the pandemic is due to a key exclusion that exists in nearly all Workers’ Compensation laws. Infectious diseases are not covered unless it could be proven that a person was infected on the job, which is typically very difficult, if not impossible.
Yet even with the presumptive laws in place for COVID-19-related illnesses, an employer has the opportunity to refute a presumption claim. In order to do so, the employer has to prove the injured worker did not sustain the injury or contract the disease on the job. For example, Illinois’ presumption bill creates a defense for employers if they can prove that they took all the safety precautions outlined in the legislation to prevent employees from contracting the illness at work. Some states are considering conclusive presumptions so that the Workers’ Compensation insurance would step in to cover the claim regardless of whether the employer can prove the injured worker contracted COVID-19 somewhere other than at work.
There have been numerous court cases already filed by employees or the estate of an employee who has passed away due to COVID-19. The majority of the cases were in the non-healthcare industry and involve negligent lawsuits alleging the employer failed to protect its employees from contracting COVID-19 and that it knew or should have known that there was a high risk of infection and exposure at the workplace.
During the last few months, some states that don’t have presumptive laws for workers who get COVID-19 have accepted Workers’ Comp claims while others have rejected such claims. Uncertainty over the long-term effects of COVID-19, including the mental toll it’s taking on health care workers and first responders, may be driving the claim rejections.
Manchester Specialty Programs will continue to keep you updated on the Workers’ Compensation front and how states, insurers, and the courts are handling COVID-19-related claims for health care workers. We provide Workers’ Compensation insurance among other critical coverages for the Home Health Care, Allied Health and Human and Social Services sectors. For more information about our insurance programs, please call us at 1-855-972-9399.