- Are we likely to have claims?
- Do we have any defenses to claims?
- 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
- High blood pressure
- 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.
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 Illinois did but rescinded it.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
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
- 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
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)
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
- 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
- You have a duty to your other employees to follow up with the allegedly-exposed employee until you have confirmation of their exposure.
- Phones and email work in both directions.
- “They never followed up” is an insufficient excuse for failing to inform others who could be exposed.
COVID-19 Resources for Employers
- CDC Guidance for Businesses
- OSHA Guidance for Employers
- Tips from NYC Small Business Services
- FAQs About Employee Protection Agencies