Workers' Compensation and COVID-19: an update

Regulatory, legislative, and guidance updates - federal

CDC: Guidance for reopening buildings after prolonged shutdown, guide to global digital tools for COVID-19 response and more

Several guidance documents were issued in September including a guide to ensure that your water system is safe to use after a prolonged shutdown to minimize the risk of Legionnaires' disease and other diseases associated with water and a guide to digital tools used for contact tracing and surveillance, among other activities. Other topics include restaurants and bars, schools, testing, contact tracing, PPE, travel, disaster shelters, and more.

EEOC: Updates technical assistance document, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws

The update incorporates information from other Commission resources and addresses 18 new questions regarding the application of the Americans With Disabilities Act ("ADA"), the Rehabilitation Act, and other EEO laws to employers continuing to face the struggles of the COVID-19 pandemic, including testing and screening, confidentiality, reasonable accommodations, and teleworking post-pandemic. The updates are indicated in the document.

DOL: Families First Coronavirus Response Act (FFCRA) updated regulations

The Department of Labor (DOL) released updated regulations in response to a federal judge's opinion striking down key portions of the coronavirus paid-leave rule. The new regulations expand leave entitlements to more health-care workers and ease the deadline for documentation requirements for workers seeking the benefits. However, the agency held firm on its position that employees may take FFCRA leave only if work would otherwise be available to them and that an employee must have employer approval to take the leave intermittently.

Accompanying guidance clarifies that the court's ruling to partially invalidate the regulation applies nationwide, not just in New York.

OSHA: More citations issued and new guidance
See OSHA Watch section for details

Regulatory, legislative, and guidance updates - state

California Gov. Gavin Newsom signed S.B. 1159, which creates a presumption that first responders, health care workers, and police officers who test positive for COVID-19 within 14 days of working contracted the virus at work and are entitled to workers' compensation, unless their employers can prove that they contracted the virus elsewhere. Employees who have paid sick leave must exhaust those benefits before any temporary disability benefits can be paid. The law also mandates that the Commission on Health and Safety and Workers' Compensation conduct a study on the effect that COVID-19 claims have had on the state's workers' comp system and deliver the final report to the governor by April 30, 2022.

Another measure, A.B. 685, requires employers to report potential outbreaks of COVID-19 at their workplaces to public health officials within one business day of learning of the potential exposure. It also requires employers to report known cases to workers who may have been exposed to COVID-19 within one business day and authorizes the Division of Occupational Safety and Health to close worksites due to COVID-19 hazards.

Both laws take effect immediately and expire Jan. 1, 2023.

The Governor also signed A.B. 2043 and A.B. 2165 establishing the nation's first legislative package of COVID-19 protections for agricultural workers. It requires the Division of Occupational Safety and Health to "disseminate, in both English and Spanish, information on best practices for COVID-19 infection prevention" consistent with Cal/OSHA's guidelines as well as working collaboratively with community organizations and organizations representing employees and employers to conduct a statewide outreach campaign, targeted at agricultural employees.

New Jersey Gov. Phil Murphy signed S.B. 2380, which creates the rebuttable presumption that COVID-19 is an occupational disease during a declared state of emergency for essential workers. Essential workers are defined as workers whose job duties are considered essential during an emergency response and recovery operation; public or private sector employees whose job duties are essential to the public's health, safety and welfare; emergency responders and workers at health care facilities, and those performing jobs that support a health care facility, such as laundry, research, and hospital food service. The legislation takes effect immediately and is retroactive to March.

Ohio Gov. Mike DeWine signed H.B. 606, which provides civil immunity to businesses as well as schools, health care providers, and other entities from lawsuits arising from the exposure, transmission, or contraction of COVID-19, or any of the virus' mutation, so long as these entities do not show willful misconduct. The law is in effect retroactively from March 9 through Sept. 30, 2021.

A Virginia Senate committee killed a bill that had passed in the House of Representatives and would have made COVID-19 a compensable workers' compensation injury by presumption for firefighters, emergency medical services personnel, law-enforcement officers, first responders, health care providers, and school employees.

NCCI has an excellent resource center to stay up to date.

State OSHA: Citations issued in California, Michigan, Nevada, and Oregon
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 examined 17,653 COVID-related workers' compensation indemnity claims (medical-only claims were not included). 56% of the claims were compensable and 44% were denied, slightly lower than the 46% denial rate as of the end of June.

A total of $22.5 million has been paid on these claims (in indemnity and medical benefits), which is 6.8% of the Florida overall claims cost. There are two claims in the "over $500,000 category," with a total paid on two claims of $1.47 million. Most of the claims (96%) are in the range from $0 to $4,999, and the average is about $718. The percentage of claims from health care workers declined to 29% in August from a high of 57% in May and service workers' claims grew from 4% in May to 27% in August.

Claims continued to grow in August in California, although at a slower rate than July. As of Sept. 21, the total for the year was 41,861 claims or 11.2% of all job injury claims. The distribution by industry shows health care workers account for the largest share of claims (38.1%) followed by public safety/government workers (15.8%), retail trade (7.6%), manufacturing (7.6%), and transportation (5.0%). The percentage of denied COVID-19 claims declined to 28.6% from CWCI's May report of 35.5%. It's important to note that there was no presumption order in effect in August.

It's projected that the total of workers' comp claims with January to August injury dates will decline 11% from 2019, reflecting the shutdown, the sharp drop in employment, and the high number of employees working from home.

Minnesota's Department of Labor released a PowerPoint on workers' comp statistics, indicating that 4,822 claims were filed through September 11, with over 60% from health care and social assistance industries and 20% from manufacturers. Hospitals, nursing homes, and meat processing plants dominate the claims. According to an article in Business Insurance, meatpacking employees filed 930 workers' compensation claims involving COVID-19 as of Sept. 11. None were accepted, 717 were rejected and 213 were under review.

Takeaway: Whether a case is compensable will depend on the particular circumstance. While the majority of compensable cases will be low cost and many workers will return to their job, the most serious cases can involve long recovery periods with unpredictable aftereffects. Flexible arrangements for how these workers return to work, such as reduced hours or working from home as well as mental health support may be necessary.

Lawsuits - filings steadily increasing

According to labor and employment law firm, Littler, there have been 792 lawsuits (including 84 class actions) filed against employers for alleged labor and employment violations related to the coronavirus as of Sept. 25, with filings increasing each month. The most common complaints have focused on retaliation (359), wrongful termination (240), workplace safety (185), leaves of absence (180), and discrimination (138). The healthcare industry has been hardest hit by COVID-19 employment litigation with 203 alleged violations.

Case law surrounding workers comp and COVID-19 is just beginning to emerge. In a recent case, Brooks v. Corecivic of Tennessee, LLC, the federal District Court for the Southern District of California ruled that workers' compensation exclusive remedy barred claims of the employer's alleged failure to maintain a safe and healthy work environment. The recent Noteworthy Panel Decision of Corona v. California Walls, Inc., addresses whether an employer is responsible to pay temporary total disability benefits (TTD) when an employee is released to modified work, does return to modified work, but the employer is shut down due to the stay-at-home order. (see Legal Corner section for details)

Spending on wearables increases

According to new studies from independent research firm Verdantix, firms have turned to connected worker solutions that enhance COVID-19 workplace track-and-trace initiatives and enable remote assistance with augmented reality (AR) technology. "Contact tracing technology can assist companies identify where to focus cleaning efforts and which individuals should quarantine."

Many wearables that can alert a worker a hazard (in this case a person) is present have been repackaged or redesigned for use during the pandemic. Software has also been developed to complete such tasks as quality checks, maintenance inquiries, and trouble-shooting "without having to break social distancing." Other technology-driven solutions are designed to enable employees to conduct self-assessments before they go to work.

'Am I Safe at Work?': AFL-CIO launches e-tool

Available in English and Spanish, the Am I Safe at Work? e-tool presents a series of eight workplace safety questions that start with the phrase, "Has your employer." It also informs people how to contact a union, document workplace hazards, communicate with other workers about safety, and negotiate with employers for safe working conditions.

New resources

American Industrial Hygiene Association - AIHA
The latest guidance includes recommendations on engineering controls (ventilation, enhanced filtration, and physical barriers), germicidal ultraviolet radiation, enhanced cleaning and disinfection and personal hygiene, and physical distancing.

There is also new guidance on keeping construction workers safe.

All resources are available to download on www.backtoworksafely.org.

COVID-19 employee health screening requirements by state
The text-message-based health screening company Picohealth offers a free online tool that helps employers keep track of state health screening requirements.