By: Mark Gordon
Questions have persistently arisen as to whether an employer is responsible to pay workers’ compensation benefits to an employee who has been rendered disabled as a result of a COVID-19 diagnosis or, in the alternative, is prevented from working based on an employer’s concern that the employee’s presence may lead to others contracting the disease.
In the vast majority of instances, it is unlikely that an employee can demonstrate that COVID-19 arose in the course and scope of the employee’s employment. If one assumes a 40-hour work week, less than 25% of the employee’s potential exposure occurs in the work environment versus the non-work environment. COVID-19 is not unique to the work setting. Accordingly, in most instances an employee’s efforts to prove causation between COVID-19 and work exposure will fail.
Every state has their own unique workers’ compensation statute for dealing with compensatory illnesses. Recognizing that certain classes of individuals may be more susceptible to a given disease in a work environment when compared to the general population, states have created presumptions to establish medical causation.
Many states have extended workers’ compensation coverage to employees who fall victim to COVID-19 by creating a presumption that the employee’s work led to the deleterious exposure and contraction of the infection. Those states addressing these issues have identified certain professions where there is a known increased risk in contracting the infection due to the occupation. Classes of employees who have received the benefit of these presumptions in those states that have addressed the same include first responders (police, firefighters and EMTs) and front line healthcare workers. In those states that have successfully passed such legislation, a presumption is created that those who work in these professions and carry a COVID-19 diagnosis are presumed to have contracted the disease while in the course and scope of their employment. In those instances where a presumption has been triggered, the employer who wishes to oppose the claim will be obligated to present evidence that the employee was not exposed and/or that it was more likely that the exposure to the virus occurred outside of the employment setting.
The National Conference of State Legislatures (NCSL) tracks legislation and executive orders issued for each state that directly addresses workers’ compensation coverage of COVID-19. The NCSL routinely updates state actions. The updates are readily available on line. The information provided identifies each state, whether legislation has been approved, whether executive orders have been issued, and what legislation, if any, is pending in a given state. The information also identifies those classes of employees that are protected by the presumption, if any.
All workers’ compensation claims for COVID-19 related illness should be denied and thoroughly investigated. Those who are defending must determine whether medical causation is subject to the aforementioned presumptions. Strategies to overcome such presumptions have to be developed on a case-by-case basis.
The failure to defend a claim that was otherwise defensible can create enormous problems for the employer that goes beyond the compensability of a single claim. An employee who has established that their COVID-19 diagnosis is work related may become the source of other claims by co-employees. Further, one who carries a work-related diagnosis of COVID-19 may infect non-employees, creating the potential for civil liability against the employer.
A question has arisen as to whether an employer is obligated to record an employee’s diagnosis of COVID-19 in the OSHA 300 log. Absent objective evidence establishing that the disease was caused by work exposure, there is no obligation for the employer to so record.
On April 10, 2020, OSHA issued guidelines, acknowledging that the determination of work-relatedness for COVID-19 infections is difficult. OSHA has indicated that it will nor enforce record keeping to require employers to make work-related determinations for COVID-19 cases, except where:
Note, however, that OSHA has recognized that its guidelines are not applicable to the healthcare industry, emergency response organizations and correctional institutions, which would require a more aggressive investigation on the part of the employer.
COVID-19 is confirmed by looking to guidelines issued by the CDC (Centers for Disease Control & Prevention). The CDC defines confirmation of COVID-19 as those instances where an individual has at least one respiratory specimen that tested positive for the virus. Once establishing the existence of COVID-19, the employer is obligated to record where the infection is deemed to be “work related.” Under OSHA guidelines, an illness is considered work related if an event or exposure in the work environment either caused or contributed to the resulting condition. It is important to note that while COVID-19 is not an inherent hazard to the workplace, objective evidence of causation will require the employer to record.
As to whether there is objective evidence to establish causation is a question that employers should address. The employer’s election not to record must be based on a reasonable determination that it could not establish causation in light of other plausible explanations. Given the nature of the illness, work-relatedness is difficult to establish. However, as a general rule, where there is a significant outbreak at a facility or workplace among employees that work closely with one another, an investigation is warranted.
Many employers establish a self-quarantine or leave policy for the employee upon proof of COVID-19. If the employer determines that the disease arose out of work exposure, the self-quarantine or leave policy in and of itself establishes the basis for a recordable event. On the other hand, if the employer does not have a self-quarantine or leave policy, then the obligation to record will be predicated on proof of causation and evidence that the disease resulted in death, days away from work, restricted work or transfer to a different job, medical treatment beyond first aid, or loss of consciousness. 29 C.F.R. §1904.7(a).
Days away from work include those days when a licensed healthcare professional recommends that an employee remain away from work, even if the infection would not have prevented the employee from returning to work based on physical limitations.
Restricted duty is defined as any scenario where the employee is prohibited from performing one or more of the routine functions of his/her job or from working a full work day, either because of objective physical dysfunction or because a licensed healthcare professional has recommended that the employee refrain from work. 29 C.F.R. §1904.7(b)(4).
Per the above, if in a given state there are causation presumptions which are applicable to certain classes of employees, in the absence of evidence to overcome those presumptions, these incidents are to be reported.
OSHA investigations and violations are admissible in most, if not all, states, even where the claim is presented by a non-employee against the employer. Many states have held that while OSHA may not be applicable to a non-employee, evidence that an employer violated OSHA standards to its employees may be admissible as proof of negligence in a civil action presented by a non-employee third party. The courts have been more willing to accept OSHA as evidence of a standard of care that goes beyond an employer’s obligations to its employees.
Accordingly, efforts have been made by attorneys to secure OSHA claim files under FOI requests. Evidence that an employer recorded a COVID-19 event in its log without objective proof of causation may be construed as an admission and impair the ability of the employer to contest claims brought on behalf of its employee or by third parties who are subsequently impacted by exposure to the employee who carries the diagnosis of COVID-19.
Thus, an employer should not deem COVID-19 as a recordable event in its OSHA 300 logs unless there is clear objective evidence of a relationship between the employment and the infection, and the infection results in restricted duty or time away from work or, in a contested case, there is a final determination that an employee’s COVID-19 was causally connected in whole or in part to a workplace exposure.
OSHA has recently begun to issue guidance on mitigation and prevention of COVID-19 in the workplace. Its most current issuance is dated January 29, 2021, relating to an employer’s implementation of COVID-19 prevention programs in the workplace. To that end, it emphasizes the need to implement physical distancing requirements, installation of barriers where physical distancing cannot be maintained, and suppressing the spread by using face coverage.
It is important to note that OSHA’s recent communication is not a standard or regulation. It does not create any new obligations. Notwithstanding, the guidance is intended to assist employers in recognizing and abating the hazards associated with COVID-19.
OSHA recommends that employers should: