COVID-19 Workers Comp Update

Businesses and governments are trying to determine when COVID-19 infections qualify for workers’ comp benefits. Some states such as California, Wisconsin and New Jersey have taken steps to provide workers compensation benefits for workers infected with COVID-19 by making it a rebuttable presumption that the infection occurred at work. In Wisconsin and several other states, the rebuttable presumption applies only to health care and emergency response workers. Other states, such as California, have issued orders covering all “essential” employees. In California, “essential” means “Essential Critical Infrastructure Workers,” which includes workers in grocery stores, banks, transportation services, utility and communications industries, and many more people. Businesses and many legislators have resisted these efforts, and in Illinois, for example, the state workers compensation agency got a judge to agree to invalidate a legislative rule that would have presumed all COVID-19 cases involving essential workers to be work-related.

OSHA Logs

Without an actual workplace outbreak of COVID-19 (such as has occurred in several meat packing plants), it would be difficult in most cases to determine how a worker may have contracted the virus. The exception is first responders and health care workers who deal directly with COVID-19 patients. In the case of these essential workers, however, OSHA guidance actually requires employers to log COVID-19 illnesses on their OSHA 300 Logs. This is not so with other worker classifications.

Employees Suing Employers

While workers compensation is a “no-fault” system, exceptions exist, such as when the employer intentionally or negligently causes harm to the employee. This is what’s such a great concern for many businesses that want to open back up sooner than later. Employees could allege wrongful death or illness due to COVID-19 arising out of the employer’s intentional misconduct (See our article in this edition “Employers Liability and COVID-19”).

Senate Attempts to Limit COVID-19 Liability

These concerns and lawsuits from the general public are why business groups such as the U.S. Chamber of Commerce and legislators like Senate Majority Leader Mitch McConnell have been trying to get blanket immunity for businesses to protect them from COVID-19 lawsuits.

McConnell has stated that the Senate will not pass any new stimulus legislation to help the economy unless Congress passes liability restrictions to protect businesses from being sued over allegations that it aided in transmitting the virus.

Some Senate Republicans, however, such as Lindsay Graham, a South Carolina Republican, have indicated support for putting in place certain workplace standards, giving workers recourse but providing employers a defense. The aim is to facilitate the reopening of the locked down U.S. economy without creating a “litigation heaven” for attorneys, as Trumped has warned.

Witnesses at a recent Senate hearing, representing both labor and businesses, made the proposal to create a set of guidelines for businesses to reopen, suggesting the rules could come through the Occupational Safety and Health Administration. When the Centers for Disease Control tried to issue reopening guidelines for daycare centers, restaurants, theatres and other businesses, however, the administration blocked the move, saying they were overly specific.

“It seems to me that one primary goal out of this hearing is to get the standards in place for business,” said Graham. “The big hole in the puzzle right now is the standards.”

“Just Another Ploy”

Democrats characterize these attempts to limit liability for COVID-19 losses as just “another ploy to strip workers of their protections — at a time when they and the public already face grave danger.”
“Before this pandemic, businesses had to act responsibly and follow federal safety guidelines,” said Senator Dianne Feinstein of California. “It’s hard to see why they shouldn’t have to do the same in the face of a deadly virus.”

Many tort law scholars contend that since it would be hard to establish just when the virus was contracted, given it has a 14-day latency before symptoms appear, proving how the infection occurred would be difficult except in the case of health care workers or first responders or an allegation of an employer’s intentional disregard.

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