Workers compensation laws do vary widely between states, but they all have one general thing in common – they only provide compensation for disability, illness or disease that arises as a direct result of or during the course of employment. Workers who qualify for workers compensation go on to receive benefits including medical cost coverage, wage loss benefits, rehabilitation benefits, and, in the case of an employee’s death, a burial allowance.
Many statutes specifically outline the exclusion of everyday diseases such as the flu or a head cold. So, where does this leave an employee who claims that they have contracted Covid-19 while at work?
Presumptive statutes for essential workers
Given that there are so many ways that Covid-19 can potentially be contracted, it would ordinarily be an uphill battle for an employee to prove that their contamination originated from their place of work.
To aid certain workers in overcoming this steep burden of proof, many states have made allowances for industry-wide exceptions whereby the employees are considered to be essential workers. These workers are also typically at a higher risk of contracting the virus on the job.
Such states have implemented the presumption that essential workers in particular industries who contract coronavirus have done so while performing the duties of their employment. This has made it much easier for these particular workers to successfully claim for workers compensation coverage.
In Michigan, for example, under the 2020 Workers Disability Compensation Agency and Emergency Rules, anyone diagnosed with Covid-19 who identifies as a First Response Employee is automatically considered to be suffering with an illness that has arisen during the course of their employment. First Response Employee definitions include:
- An individual working within ambulance operations or advanced emergency mobile care services, emergency services, emergency medical services, county medical care facilities, hospices, hospitals, nursing homes, and other homes for the aged
- An individual working for a visiting nurse association or other home health agency
- Any fire fighters, police officers, emergency medical personnel, on-call fire department members, volunteer civil defense representatives, on-call members of an emergency rescue team or life support agency, as per those use of terms in the Workers Compensation Act of 1969
- Any member of the State Police Department or an officer of the Commercial Vehicle Enforcement Division (Department of State Police)
- Any Department of Corrections Officer or other local corrections officer
Many other states have also passed ‘presumption statutes’ with similar guidelines, although some have established a far broader category of employees that are covered under this rule. For example, some include delivery service workers and grocery store employees. Such employees who contract the virus are automatically presumed to have been exposed while at their place of work, and thus can lodge a valid workers compensation claim. That is, unless the employer or insurer seeks to overcome the presumption that the employee’s infection was work-related, although this can be a tricky burden of proof to address.
Can any worker still apply for Covid-related workers compensation?
Workers who are diagnosed with Covid-19 and whose employment does not fall under the presumptive statutes can still make a claim for compensation. So long as the individual has been medically diagnosed by a test or physician and can identify a specific source of work-related exposure to the coronavirus, they may be able to demonstrate that contracting the virus directly related to a work premise or task.
Ultimately, though, Workers Compensation Law states that an ordinary disease to which the public is regularly and generally exposed outside of the workplace is not compensable. Consequently, whether or not a contraction of Covid-19 resulted from a place of work is debatable should the individual not fall into one of the First Responder or other essential workers categories as outlined by their state.
So far, industry data shows that the majority of claims for workers compensation lodged by Covid-19-infected workers who don’t fall under the presumption statutes categories have been denied.
Even in the cases whereby workers do fall under the presumptive clause, there have been instances whereby some employers have successfully defeated such claims by demonstrating that they have upheld significant, well documented and clearly outlined worker safety protocols. This data shows that in the last 12 months, 31% of all claims made for workers compensation alleged the contraction of Covid-19 occurred in the workplace, yet only represent 8% of the total benefits paid out as a percentage of all claims paid in that period. The majority of successful Covid-related workers compensation claims were lodged by first responders, health care workers, and other employees working in ‘high infection risk’ environments.
Conclusion
The pandemic will continue to challenge the workers compensation industry as well as a broad range of business for some time to come. A business’s best course of action in protecting themselves from Covid-related workers comp claims is to stay fully informed and compliant when it comes to legislative and industry changes, such as new OSHA standards and CDC guidelines.
