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Keeping Your Employees Safe from COVID-19

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The three core questions employers have been asking at this stage of the coronavirus (COVID-19) pandemic:
  1. Are we likely to have claims?
  2. Do we have any defenses to claims?
  3. What can we do to protect our employees and our businesses?

Likelihood of Claims

Most employers of essential workers are likely to have a COVID-19 claim. This does not necessarily mean it is a valid and compensable claim, but you should expect to have one.

It’s a statistical probability

We are learning more about the coronavirus (COVID-19) almost daily. As of this post date, the statistics strongly suggest that employers of essential workers are at risk for a COVID-19 claim. This is especially true in workplaces where their employees are directly exposed to coronavirus patients or decedents. That should be obvious.
Other factors that increase the risk of infection include:
  • Obesity
  • High blood pressure
  • Diabetes
  • Smoking or vaping
  • Other conditions that weaken immunity

It’s a normal human response

With the majority of the world in various stages of lockdown due to the virus, there is not much else on the news or to discuss. As filmmaker George Lucas says, “Always remember, your focus determines your reality.” Your employees are focusing on the coronavirus, which means it will likely play out in their reality, in some form. A claim could be that form.

Employer Defenses

Your defenses might be few if you have any. Some states have effectively made employers strictly liable for all COVID-19 claims by their employees, regardless of whether they have similar or greater risks of contracting the virus outside of work. You will need to review the laws for each state in which your employees work.

Federal employees are presumably entitled to workers compensation benefits if they are working in high-risk jobs where they are exposed to the virus.

A few states, such as California and Illinois, considered making COVID-19 an occupational disease that carried the presumption of compensability for essential workers. California chose not to pass such a law. Illinois did but rescinded it.

In New York, Paid Family Leave and short-term Disability benefits have been expanded to cover most lost time from work due to coronavirus. However, there are also many New York residents without health insurance to pay for the related medical expenses, and we expect them to file workers compensation claims in an attempt to avoid huge financial losses. Fortunately, you will still have the usual defenses, even if many judges will be sympathetic to claimants and likely to award WC benefits.

It’s a public policy issue

Regardless of your opinion about the expansion of various insurance programs, and the litigation that will probably result, the states typically pass such resolutions believing it is in the best interests of the general public. If the federal, state, or local government can find a private funding source, such as an insurance carrier or self-insured employer, it is arguably preserving taxpayer dollars.

But it’s still your issue, too

It appears that most states will allow employers and their insurance carriers or third-party administrators to investigate other potential points of exposure if their employees file workers compensation claims. At minimum, you should still do your due diligence and explore the below defenses:

  • Course and Scope of Employment

How does the employee get to and from work? A crowded bus or subway could increase the risk of COVID-19 exposure. Likewise, a personal car that is not regularly cleaned and disinfected might be the point of exposure.

Who lives with your employees? Family members of doctors, nurses, emergency medical technicians, funeral directors, and other front-line essential workers are probably at greater risk of exposure to the virus outside of their work due to their family members.

Have the employees been social distancing? This might be difficult to determine, but social media posts of them in a crowded park on a sunny day or bragging about not needing a mask could be evidence of non-work exposure.

  • Prima Facie Medical Evidence

This could be one of the more difficult pieces of evidence to come by during the pandemic because medical staff are so overwhelmed. I suspect this is one of the reasons New York State has tried to encourage use of PFL or DB benefits before resorting to workers compensation. Still, PFME of a work-related exposure is one of the few requirements an employee-claimant has when seeking WC benefits. Ask for it. This will also allow you to confirm COVID-19 exposure and respond accordingly before others are exposed in your workplace.

  • Causal Relationship

Again, PFME might not be easy for an infected employee to obtain, but it is required because it is medical evidence of the causal relationship, or the relationship between the employee’s work and diagnosis. If there is no medical documentation of a positive coronavirus test, the employee should probably seek PFL or DB benefits, and the WC Board should not award WC benefits. Of course, that does not mean it won’t. You must still prepare a defense in every claim.

Preventing Exposure

I write, speak, and teach regularly on listening with your “third ear“. Especially during this unprecedented time, we all need to listen to each other more compassionately and for the hurts we can heal, or the problems we can solve. Everyone is being affected by the pandemic in some way, and it will benefit you greatly–in the short and long terms–to do the following:
  • Take all concerns seriously
  • Know your contracts (e.g., client, services, union)
  • Read up on the new laws that apply in every state where you have employees
  • Keep in contact with your employment or workers compensation defense counsel

Minimize (physical) contact

Although you must minimize physical contact, communication and emotional contact are critical. I have recommended that my clients remind employees at least weekly how to protect themselves from the virus at work and at home.

You can learn a lot by watching what other businesses are doing to keep their workers safe. Did you notice the plexiglass barriers going up in the checkout lanes at grocery and convenience stores? Are there hand sanitizer stations inside doors? Disinfecting sprays? Free masks? Restrictions on entering without a mask?

One of the most important goals is to minimize physical contact with others, including indirect contact through breathed air. This can be accomplished in many workplaces by:

  • Minimizing the number of people in a work area at any given time
  • Minimizing the number of people in a vehicle
  • Minimizing the number of people in an office, especially if the work can be done from home
The key word is minimize.

min·i·mize (ˈminəˌmīz) – v. to reduce something to the smallest possible amount.

If your primary reason for scheduling workers to be where they could be exposed to the virus is that it has always been done that way, you definitely need to consider whether there is a safer option. Inconvenience is no excuse for risking someone’s life, and the New York State Workers Compensation Board, as well as the State’s courts, could penalize you harshly for not doing all you can to minimize employee risks.

Provide additional personal protective equipment (PPE)

The supply chain seems to be recovering from the mad rush for PPE in late March and early April. There is little excuse for failing to provide PPE for your workers, unless they are on the front lines in places like New York City. Don’t cheap out on your employees. The cost of PPE can add up, but a claim for permanent coronavirus-related disability or death will certainly outweigh those costs. You must always weigh the risks with the potential rewards.

Communicate from a distance, yet regularly

If you are having a difficult time keeping up with the many daily changes, assume your employees are having similar difficulties. This is not because they are less intelligent (or vice versa). It’s a lot for any human brain to absorb, verify, analyze, and adapt to, especially under individual and global circumstances. Open that third ear of yours but do it wisely.

Communicate what is necessary, such as:

  • Confirmed Cases*
  • Cleaning Needs
  • Closures
  • How to File a Claim
  • Wage Replacement Options

* REMEMBER THAT YOU STILL HAVE A DUTY TO MAINTAIN AN EMPLOYEE’S CONFIDENTIAL HEALTH INFORMATION.

Under the Health Information Portability and Accountability Act (HIPAA), you may not disclose the individual employee’s diagnosis. The appropriate way to communicate a workplace exposure is to say:

“An employee you have worked with has tested positive for the coronavirus, and you might have been exposed…”

If employees ask for a name or ask if it was a particular employee, your response should be something along the lines of:

“I have an obligation to maintain the privacy of all employees’ health information. Just as I would not discuss yours, I will not discuss anyone else’s…”

Respond quickly to any report of exposure

Unfortunately, there have been a couple of reports of employees calling into work, alleging they are symptomatic and failing to update their employers on their test results. An occasional short-sighted, inconsiderate act will occur, but:
  1. You have a duty to your other employees to follow up with the allegedly-exposed employee until you have confirmation of their exposure.
  2. Phones and email work in both directions.
  3. “They never followed up” is an insufficient excuse for failing to inform others who could be exposed.
Once exposure has been confirmed, isolate potentially exposed employees for 1o days and until they are medically cleared to return. You can also help them navigate the process by sending them information from the CDC.

COVID-19 Resources for Employers

REMINDER: This post is for general information only. It is not legal advice. Your insurance carrier typically has a duty to defend you in any WC claims filed against you and will typically assign defense counsel. I recommend that you discuss your defense with counsel before taking any action.