How to Tell When You’ve Got a Claim on Your Hands
As COVID-19 continues to spread, here’s how you can determine whether it’s an occupational disease.
The chorus of Prince’s “Raspberry Beret,” Dolly Parton’s “Jolene,” Toto’s “Africa,” Lizzo’s “Truth Hurts” or Fleetwood Mac’s “Landslide” could all become common tunes around office bathrooms as employees become increasingly concerned about COVID-19.
Lists of 20-second portions of songs to jam to while washing your hands, guides on how to stop touching your face, and warnings about an impending shortage of surgical masks abound as individuals try to reduce their risk of being exposed to the virus.
Individuals aren’t the only ones responsible for managing the risks associated with coronavirus, however. For companies, the disease could potentially have workers’ compensation or general liability implications.
Businesses are starting to take notice and from telecommuting options to employee travel bans, they’re trying to mitigate their exposure to the risk.
“This is all very much in flux,” said Joe Santoro, Gunster’s labor and employment shareholder and attorney. “Exercise common sense; Don’t overreact.”
“You don’t want to create a panic, but protecting people’s lives is more important than a few sick days,” he added.
Is Coronavirus Compensable?
Whether or not coronavirus can be considered an occupational disease will vary between professions and jurisdictions.
“Every state has its own jurisdictional requirements about what they consider an occupational illness or disease,” said Cyndi Curd, national vice president of claim operations and quality and compliance at Broadspire, Crawford & Company’s global TPA.
“As a general rule, the illness or disease must be ‘occupational,’ meaning that it arose out of and was in the course and scope of the employment; and the illness or disease must arise out of or be caused by conditions particular to the work. A key term in the definition above is the word ‘particular,’ meaning the risk is inherent to the employment itself.”
The flu and other communicable diseases aren’t typically covered under workers’ compensation and some states specifically exclude diseases from their coverage, according to a white paper on the topic by Broadspire.
There are exceptions, however. For doctors, nurses and others working in the health care industry, coronavirus may be considered an occupational disease because of increased exposure.
“There are occupational groups that arguably would have a higher probability for exposure such as health care workers,” states a report from NCCI.
“Even in those cases, there may be uncertainty as to whether the disease is compensable. Would time away from work during recovery be considered ‘temporary disability’ or is it just normal ‘sick time’?”
While there’s no one-size-fits-all solution for determining whether or not coronavirus is compensable under workers’ comp, many states use a two-prong test to determine whether or not an illness is an occupational disease.
Under this test, illness is considered an occupational disease if it “arose out of and was in the course and scope of the employment” and if it must “arise out of or be caused by conditions particular to the work.”
“Unfortunately, it is a ‘maybe’ on whether something will be compensable or not,” said Erica Fichter, senior vice president of medical management at Broadspire.
“A determination must be made on whether the worker was any more susceptible to the virus because of their employment than they would have been in everyday life in addition to any other jurisdictional requirements.”
So far, only one state has taken measures to clarify whether or not coronavirus is covered.
Washington’s Department of Labor and Industries changed its policy on March 5 to clarify that the state will provide benefits to health care workers and first responders during the time that they are quarantined after being exposed to coronavirus on the job, according to NCCI.
“The coverage will pay for medical testing, treatment expenses if a worker becomes ill or injured, and provide indemnity payments for those who cannot work if they are sick or quarantined,” NCCI wrote.
What Other Liabilities Exist?
In addition to workers’ compensation, coronavirus could give rise to general liability claims.
If a client or supplier contracts coronavirus after interacting with the infected employees of another company, then a general liability claim could be filed.
These claims are difficult to prove, however. A plaintiff would likely have to prove that the employee knowingly came to work sick with COVID-19.
In cases like this, workers’ comp would likely still be the remedy, and since it’s considered an exclusive remedy other suits would not follow.
What Can Employers Do to Protect Themselves?
Keeping their employees safe and healthy is one way for employers to protect themselves from claims.
Beyond basic measures, such as providing employees with hand sanitizer and encouraging proper hand-washing techniques, employers should restrict business-related travel during the virus. Personal travel to high-risk areas should also be discouraged, Santoro said.
“Travel is the biggest risk,” Santoro said. “If you have employees who are required to travel as part of their jobs, at this point we’re telling clients it’s reasonable to restrict travel to areas where the CDC has identified a significant risk.”
If an employee has already traveled to an infected area, employers should encourage them to remain home for two weeks before returning to the office.
For more information about COVID-19’s effects on workers’ compensation, you can download the White Paper “The Workers Compensation Impacts of 2019 Coronavirus” or you can check out NCCI’s coverage.
For more information on the disease and the U.S.’s response, please check out the CDC’s website.