Will COVID-19 Be Covered Under Workers Comp?

The number of cases of coronavirus may be flattening in the U.S., but the number of questions surrounding the disease has not, especially among workers who believe they fell ill with COVID-19 while on the job.

Do they qualify for workers compensation benefits because of the disease?

The answer is “yes.” Or “maybe”. Or, better yet, “it depends on:

• What state you work in
• The nature of your job
• Who bears the burden of proving where and how the disease was contracted?

Complicating the issue even more are the rules for determining coverage or claims in any given state reflects a patchwork of executive, legislative, regulatory and judicial decisions that are often open to interpretation and dispute. And in this quickly evolving and largely unprecedented situation, what’s true this week in a particular state may be different next week.

At the heart of the matter is a question that has only rarely been addressed during the long history of workers comp laws: Should the system cover claims resulting from the contraction of a virus?

“I’ve been doing workers comp law since 1984, and this is pretty much uncharted territory from our standpoint,” said Tom Holder, an Atlanta attorney and immediate past president of the Workers’ Injury and Law Advocacy Group, which represents the interests of workers across the country in workers comp cases. “I don’t recall anything like this in my lifetime certainly.”

If you were unlucky enough to come down with the coronavirus during the pandemic, but lucky enough to have been working outside your home in California at the time, the answer to the question is almost certainly yes, you will be covered under workers comp thanks to an executive order by Governor Gavin Newsom.

If, however, you were a grocery store clerk in Georgia when you got COVID-19 during the same period, well, don’t get your hopes up. Chances are you are out of luck.

For those trying to figure out the answer for themselves, the first thing to determine is what the rules are in the state (or territory) where you work, as each one operates its own workers comp system. (The National Council on Compensation Insurance has a handy website that tracks developments by state).

The good news is that if you’re lucky enough to be deemed an “essential worker” (most often a first responder or front line health care worker) in a state that offers a “presumption” that such workers who contracted COVID-19 did so on the job, the odds are in your favor. The bad news is that, at least as of mid-May, most states don’t fall into that category — in which case you’ll need to either brace yourself for a prolonged legal fight to try to prove your case or look for other means to pay those medical bills or recoup lost wages.

“There’s a school of thought in this country that the burden of proof is the critical workers compensation issue,” said David Langham, a deputy chief judge for workers compensation claims in Florida. “That is because the party that has the burden of proof is going to have the more difficult time prevailing.”

And, as anyone who has ever caught a cold or the flu knows well, trying to pinpoint where and when you came down with the bug is about as easy as finding a needle in a haystack.

Is COVID-19 an Occupational Disease?

The first step in answering this question is figuring out the lay of the land in the state or territory in which you live. For better or worse, workers comp is a state-based insurance system subject to the whims of the laws, and those who write them, in the state or territory in which you live (in addition to the 50 states, the federal government, District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam all have their own distinct workers comp systems).

“I have to tell people on a daily basis that all states have different workers comp laws, and the two worst are Texas and Florida because of the restrictive nature of their laws,” said Scott Uricchio, who has handled workers comp cases for 20 years for Morgan & Morgan, the largest law firm in Florida.

Many states have traditionally drawn a sharp line limiting the types of diseases that are compensable under workers comp laws, excluding viral infections such as influenza and pneumonia that are widely present among the general public. Hawaii, on the other hand, had previously amended its workers comp laws to potentially include infectious diseases such as the flu, making it much easier to now extend workers comp protections to COVID-19.

Langham said in a recent webinar on COVID-19 that there is a wide range of potential outcomes in how the novel coronavirus will be treated from state to state.

“Folks need to remember and realize that workers compensation, whether we like it or not, is largely about drawing circles around things that are included in a set and things that are not,” he said. “As states have made decisions about whether they will or will not have compensability for things like viral infection, they are making a choice about the population of things that will be covered … Some states are more liberal with viral infections, some states not so much.”

Most states have at least begun the process of trying to determine whether COVID-19 potentially qualifies as an “occupational disease” rather than a “disease of life” for at least some workers, which at a minimum opens the door for workers to be compensated for lost wages and medical bills.

But how far that door opens can vary greatly depending upon your specific job and where that job is located. Some states have moved aggressively to extend eligibility to practically any worker who leaves his or her home to do their job during the pandemic, while others have sought to restrict claims to front line health care workers or first responders.

“California’s executive action is clearly the broadest thus far,” Judge Langham wrote in a recent blog post. “Unlike orders in other states that have focused on the first-responder or the front line, or specific roles, this order impacts every employee that presents to a workplace outside of her/his home.”

In Florida, Uricchio thinks coronavirus-related workers comp claims will not be in the cards for most employees because “other than the front-line health workers and first-responders like police and firefighters, it’s going to be really hard to prove that you got it at work.”

Even states with the most restrictive occupational disease rules have begun to adjust their standards to reflect the realities of the coronavirus pandemic. There will clearly be a wide variance in the ease with which workers can file and prove such claims as well as which workers are defined as “essential” for the purpose of qualifying for coverage.

One of the dividing lines is between states that are including public-facing workers like grocery clerks and delivery drivers among the ranks of those who are granted special eligibility for coronavirus-related workers comp claims, and those who are restricting eligibility to first responders and/or front line health care workers.

The distinction may be particularly critical for workers in low-income professions who tend to have less-generous health insurance and paid sick leave benefits through their employers, or even no coverage at all. These workers may be more reliant on medical benefits through workers comp than front-line employees such as firefighters, police officers and nurses, who tend to benefit from more comprehensive medical coverage through their employers.

Mark Berg, who has spent more than 25 years as a workers comp attorney in the San Francisco Bay Area, thinks that one of the reasons Governor Newsom opted for a broad expansion of coverage in his state is the realization that many workers who contract COVID-19 on the job may lack health insurance, and therefore end up turning to public hospitals for treatment if their care isn’t covered through workers comp. That in turn places a greater burden on public resources at a time when state and local governments are facing huge budget holes.

“A lot of people don’t have private health insurance, so where do they go? County clinics and county emergency,” Berg said. “If they can get workers comp to cover those costs, that’s another way the state saves.”

What Will Be Covered?

In most cases, workers compensation compensates employees for lost wages and medical bills, though as with all things in the system, the level and types of benefits can vary from state to state. And with most states trying to adapt their workers comp systems on the fly to the unique circumstances around COVID-19, rules governing what’s covered will also vary and may differ from traditional occupational injury and illness claims.

For instance, California’s broad expansion did come with coverage limits. Workers must exhaust their paid sick leave before temporary disability benefits kick in (temporary disability generally pays two-thirds of gross wages while an employee is recovering from a covered injury or illness).

Berg, the California attorney, says the temporary disability benefits can be particularly valuable for employees who have limited or no paid sick time. Even those workers who suffer only mild cases of COVID-19 can expect to be off work for several weeks, including the time needed to recover and quarantine themselves to guard against infecting others.

Of course, for those workers who have generous sick pay and health insurance policies, there’s no requirement that they must file a workers comp claim, if such benefits are available through other means. Some employers may also choose to keep sick workers on their payroll and pay their regular wages without requiring them to file a workers comp claim, particularly if they are concerned about the impact a large number of coronavirus-related claims may have on their insurance premiums. That may depend largely on the specific industry and company and the specific rules a given state has implemented for COVID-19 claims.

“My personal opinion is that COVID-19 is like any other illness. Health insurance covers the flu; it should cover treatment for COVID,” Uricchio said. “Yes, the treatment obviously is different, but I think government already has laws to deal with disease, and I don’t think it has an obligation to make more laws than it already has.”

But for those who lack good sick pay and insurance benefits, the ability to file for workers comp can have huge financial implications. Berg said workers comp picks up all the medical costs for treatment of a work-related injury or illness, which can potentially save workers thousands of dollars in deductibles and co-pays that would kick in if they were forced to rely on their own health insurance (if they have it).

Proving COVID-19 Is Work-Related

As important as whether your state covers COVID-19 infections through workers comp will be who bears the burden of proving that the disease was contracted on or off the job. Because of the nearly impossible challenge of pinpointing when and where a virus was contracted, the success in filing workers comp claims for COVID-19 will largely depend on which side is granted the benefit of the doubt.

Even in states that are loosening their regulations to allow the novel coronavirus to be treated as an occupational disease, it may mean little if the burden still falls on workers to prove that they contracted the illness during the course of their work. For example, Arkansas recently suspended its rule barring workers comp claims related to diseases that widely exist among the general public to allow first responders and front line health care workers to seek compensation for COVID-19 “if contracted in the line of duty.”

However, asking workers to prove that they fell ill “in the line of duty” may be the rub.

“If I come down with black lung disease, there’s a really good argument that I got it mining coal because frankly none of us keep black coal dust in our homes,” Langham said. “Viruses are going to be more difficult. The problem, particularly with COVID-19, is that by the time you realize you’ve got it, you may not be able to point a finger and say I remember that person who was hacking and coughing that I probably got it from. For all we know, you got it from somebody who has absolutely no symptoms.”

COVID-19 Workers Comp Presumption

The arcane term “presumptive” may ultimately be the biggest factor in determining which workers in which states are able to gain workers comp benefits in COVID-19 cases. In a nutshell, states that grant workers “presumptive” eligibility for workers comp after falling ill with the coronavirus remove the burden of proof from workers: As long as they test positive for COVID-19, they are “presumed” to have contracted the illness through their job, and therefore qualify for workers comp benefits through occupational disease statutes.

If an employer or insurance carrier wants to “rebut” the presumption, it bears the burden of proving that the virus was not contracted on the job.

While it may seem like a highly technical matter, the “presumptive” statute may well be the game changer for individual workers in this situation. It also reflects a paradigm shift in the workers comp legal system by granting workers a “presumption” of a work-related injury or illness without expecting them to carry the burden of proving it.

As of early May, several states had implemented “presumptive” statutes related to COVID-19 for at least some workers, and several others had proposed such changes. Again, the statutes are specific to their own states, with some like California covering nearly all people working outside the home during the pandemic, with others such as Florida narrowly tailored to first responders and/or frontline health care workers.

For federal employees, the U.S. Department of Labor has ruled that it will presume that COVID-19 infections among workers in “high-risk” employment were “proximately caused by the nature of the employment,” making them eligible for workers comp.

It remains to be seen how smoothly the process goes from here as governors, legislators, regulators and judges sort out the ramifications and legality of new coronavirus-related rules and who ultimately has the authority to implement them; Illinois’ emergency rule has already been held up by a judge.

But in each of these states, as well as others that may follow, the workers covered by presumption should have a much easier time getting timely coverage through their claims. In contrast, workers in non-presumptive states who are left to try to prove they contracted the disease while on the job may have long since recovered before their claim is finally settled.

“The workers comp system can sometimes move slowly to provide benefits for injured workers,” said Holder, the Georgia attorney and past president of WILG. “If the benefits are denied and you have to go into a legal system, it can take quite a bit of time before the case is resolved, and what do you do with the people during that time?”

The concept of presumption is not entirely unique to COVID-19. Holder said states such as Florida, for example, have used presumption to make firefighters diagnosed with cancer eligible for workers comp, given the evidence that they are at increased risk of the disease by the nature of their profession.

“I think in states that have some presumptions already built into the system, some groundwork has been laid that people will be automatically covered,” he said, adding that he doesn’t expect states like his own without such a precedent to follow suit.

The story of COVID-19 and workers comp, therefore, might ultimately be a story of haves and have nots divided between presumptive and non-presumptive states.

“If you’re in a non-presumption state, I think it’s going to be very difficult to prove compensability of COVID, just like it would be difficult to prove compensability of influenza,” Langham said. “In those states … I just don’t think you’re going to see a lot of those cases prevail because it’s going to be a very difficult burden of proof and very expensive to prove.”

Added Holder: “I think a lot of workers who get hit by COVID because of their jobs are going to be out there without any protection. The workers comp system exists to protect workers, and it should do so when that’s appropriate.”

COVID-19 a Disease Like No Other

The workers compensation system has been a fixture in American workplaces for over a century, compensating employees who are injured or fall ill on the job. While it has grown and evolved to provide compensation for accidents ranging from sprained thumbs to fatalities, and occupational-driven ailments like black lung disease and silicosis, the system has never encountered anything remotely close to the COVID-19 pandemic, says Mark Aldrich, professor emeritus of economics at Smith College in Massachusetts.

Aldrich has written extensively on the history of workplace safety. Many have compared the coronavirus pandemic to the Spanish Flu, which spread across the globe in 1918. But Aldrich points out that the workers comp system was only about a decade old at that time and focused almost exclusively on workplace injuries, not employment-related diseases.

“To my knowledge, I don’t think any state compensated any occupational illness at that time,” Aldrich said. “They were immersed at the time in just figuring out how to make the laws work for injuries and how to count the injuries and encourage safety, all the nitty gritty of getting a new program up and running.”

Over the ensuing decades, the system evolved to also cover a variety of occupational diseases that were clearly connected to exposure of workers to harmful substances or chemicals, such as coal dust, silica or asbestos. But with few exceptions, viruses, or “diseases of life,” have historically been considered off-limits for workers comp claims, one of the chief reasons being the difficulty of proving where and under what circumstances an infection occurred.