Workers' Compensation and COVID-19: an update

Regulatory, legislative, and guidance updates - federal

CDC: Material revision to the definition of close contact

The new definition, which can be found on the CDC's website, makes it clear that the 15-minute exposure period (i.e., within 6-feet of an infected individual for 15 minutes), should be based on a cumulative amount of time over 24-hours and not one continuous 15-minute interaction. It was developed based on a limited exposure study at a correctional facility.

This new definition has important implications for employers, including determining if short interactions over a full-shift totaled more than 15 minutes (or even 2 shifts if within 24 hours) when a COVID-19 case arises. It greatly expands the universe of who may be considered a "close contact," making contact tracing even more difficult and could potentially involve many more employees in quarantine requirements. Employers should review their COVID-19 infection control plans with this new definition in mind and update contact tracing questionnaires to include inquiries focused on the cumulative approach.

EPA updates its list of registered disinfectants

The Environmental Protection Agency (EPA) has again updated its list of registered disinfectants that can help prevent and reduce the spread of COVID-19 - extending the total number of disinfectant products on the agency's sortable, searchable database to more than 500.

OSHA: Citations ramping up and new guidance
See OSHA Watch section for details

Regulatory, legislative, and guidance updates - state

NCCI: NCCI submitted a new filing (B-1443) that will remove the December 31, 2020 expiration date for the rules relating to the exclusion of paid furlough payroll and the attached statistical code, as well as estimated audits. Once approved, the rules "will continue to remain in effect and will not expire until determined at a later date as circumstances warrant and in consultation with state regulatory authorities. A future filing will be made to establish an expiration date to this rule as determined and approved by the regulator."

The California Workers' Compensation Insurance Rating Bureau clarified the application of the July 1, 2020 rule regarding the exclusion of payroll for employees who continue to be paid while they do not perform work duties. In a bulletin issued October 9, the Bureau notes, "The threshold for excluding any payroll under this rule is a determination that the payroll in question was for time not worked due to the stay-at-home order or to a COVID-19 leave."

The tracking requirements under the presumption bill, S.B.1159 signed into law in September are proving challenging for employers. Employers are required to report to their workers' compensation insurers any COVID-19 cases, whether work-related or not. Employers may be subject to civil penalties of up to $10,000 for intentionally submitting false or misleading information, or for failing to report required information. Workers' Compensation defense firm Gilson Daub has released a flowchart intended to help navigate the presumption law.

California Governor Newsom signed into law two bills, A.B 2537 and S.B 275, aimed at ensuring employers provide and stockpile personal protective equipment for health care workers or face up to $25,000 in penalties.

When the Michigan Supreme Court struck down the Governor's emergency order making it easier for first responders and health care workers who contract COVID-19 to obtain workers' compensation benefits, MIOSHA quickly responded with a series of COVID-19 Emergency Regulations. In so doing, it became the second state in the country (Virginia was the first) with an enforceable set of regulations, making it easier to issue citations. While the rules generally mirror the Governor's earlier Executive Order, it behooves employers to understand the regulations.

Signed Oct. 14 and effective immediately, the regulations will remain in effect for six months.

In New York, a state appellate court reversed a decision by the state's Workers' Compensation Board, which has important implications for employers with employees working from home. (see Legal Corner)

The Oregon Workers' Compensation Division instituted a temporary rule to ensure more consistency in processing of claims. The rule states that insurers must conduct a "reasonable investigation" before denying any claim and that if an insurer has reported five or more claims for COVID-19 or exposure to the virus, regardless of whether those claims have been accepted or denied, the director will audit the insurer's files for all claims denied for COVID-19 or exposure. The rule expires March 29, 2021.

State OSHA: See OSHA Watch section for details

Claims: An Update from Florida, California, and Minnesota

In a recently released report, Florida's Division of Workers' Compensation says that from January 1 - September 30, there were 21,221 indemnity (lost-time) COVID-19 related claims, representing 31.8% of all indemnity claims, with numbers declining significantly in September. In contrast to COVID-19 representing almost one-third of all indemnity claims, payments for medical and indemnity represented only 7.4% of total benefits paid. Most (95%) have cost less than $5,000, but there are 60 that cost more than $50,000, including 24 over $100,000. About 44% of the claims have been denied.

The California Workers' Compensation Institute (CWCI) reported that one in 14 COVID-19 cases involving people of working age (18-65 years old) from May through September were reported as job injuries as were one in 25 COVID-19 deaths. During the five months, there were 647,196 COVID-19 cases among the working-age population; 43,490 resulted in workers' compensation claims. 3,714 workers died from COVID-19 and thus far there have been 151 workers' compensation death claims. The numbers do not reflect the impact of presumption bill, S.B.1159, which was enacted on Sept.17.

The CWCI also reported that there was a significant shift in the demographics of employees filing COVID-19-related claims in the summer. Claims involving workers under the age of 30 represented 30% of COVID-19 claims from June to August, compared to 21% in the Spring. All of the age groups encompassing workers over the age of 40 saw their percentage of the COVID-19 claims decline, while the 30-39 age group remained the same. There was also a change in gender mix - men accounted for 50.6% of the Summer claims, whereas women accounted for nearly 56% of the Spring claims.

The delay in medical treatment caused by the pandemic for workers with soft tissue injuries significantly affected medical and indemnity. The WCIRB study found that soft tissue claims with delayed care were more likely to have significantly higher medical and indemnity costs, stay open longer, have a longer duration of temporary disability, and involve permanent disability.

As of Oct. 9, there were 5,733 workers' comp claims in Minnesota, approximately 1,000 higher than the Sept. 9 report according to the Department of Labor. Over 65% were from health care and social assistance industries and 17% from manufacturers. Hospitals, nursing homes, and meat processing plants continue to dominate the claims.

Lawsuits - filings steadily increasing

According to labor and employment law firm, Littler, there have been 1,000 lawsuits (up from 792 a month ago), including 110 class actions, filed against employers for alleged labor and employment violations related to the coronavirus as of October 23. The most common complaints have focused on retaliation (456), workplace safety (229), leaves of absence (211), and discrimination (172). The healthcare industry has been hardest hit by COVID-19-related employment litigation with 237 alleged violations, with manufacturing (92), hospitality (79), and retail (67) following.

AIHA releases expanded and updated Covid-19 guidelines

AIHA added guidelines for 18 new sectors, including higher education and K-12 schools, dental offices, bars, and sports. The group so far has produced 26 industry-specific guidelines. IHA's guidelines for the construction, manufacturing, and warehousing, and logistics industries now are in their fourth versions, as occupational and environmental health and safety experts have learned more about COVID-19 and the SARS-CoV-2 virus. All resources are available to download on www.backtoworksafely.org.

Amazon reports cases

Early in October, Amazon reported that 19,816 of its U.S. frontline workers tested positive or were presumed to have COVID-19 between March 1 and Sept. 19, or 1.44% of the total. While Amazon said its rate of infection was 42% lower than expected, when considering the virus' spread in the general population, Minnesota had the highest rate with nearly 32 infections per 1,000 workers, versus nearly 16 for the public.