Developing COVID-19 on the Job and Employees’ RightsJune 10, 2020 – Article
Employers’ questions abound concerning the rights of their employees that have developed COVID-19 through their employment, especially those in necessary industries and who are considered essential workers. If an employee requires treatment, how is that treatment covered? How is the employee compensated, if at all? Can an employee file a workers’ compensation claim for developing COVID-19 if he or she believes that the virus was contracted on the job? Can it be determined whether employees developed the virus in the performance of their duties? There have been a variety of responses in both the federal and state context.
The U.S. Department of Labor has issued a statement on its website concerning workers’ compensation programs, providing that “[a]ll federal employees who develop COVID-19 while in the performance of their federal duties are entitled to workers' compensation coverage pursuant to the Federal Employees' Compensation Act (FECA)”. The DOL noted that it is difficult to determine when the virus was transmitted and, thus, it developed new procedures in response to federal employees filing workers’ compensation claims who allege they contracted the virus through the course of their employment. There is an “implicit recognition” of the high likelihood of contracting the virus for those whose employment is considered “high risk,” such as law enforcement, first responders, and medical and public health personnel, as they are required to frequently interact in-person and in close proximity with the general public. If the claim is supported by the employer and the appropriate forms are filed in the necessary timeframe, the employee may receive continuation of pay for a period up to 45 days.
On the other hand, if a claim is filed by an employee whose position is not considered “high-risk,” the employee is required to submit a “factual statement and any available evidence concerning exposure” and additional information will be expected to be provided by the employment agency concerning whether the claim should be controverted. The Department further noted that the results of COVID-19 testing should be submitted, if available, in support of an employee’s claim; however, medical evidence establishing a diagnosis is required. Further, for non “high-risk” employees, a relationship based upon factual or medical evidence is required to show that the COVID-19 diagnosis was causally-related to one’s “employment conditions.”
The Occupational Safety and Health Administration (“OSHA”) has released its “Guidance on Preparing Workplaces for COVID-19,” which outlines job-dependent levels of risk of exposure and how employers can protect their workers. OSHA has also issued memoranda for the “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019,” noting that COVID-19 is considered a “recordable illness” under OSHA’s record keeping requirements and, therefore, employers are responsible for tracking cases. OSHA has acknowledged the challenges in complying with the provisions of its standards, however, such as the difficulties in ascertaining types of personal protective equipment, and has noted that it is “providing enforcement flexibilities” for such provisions.
States are taking various approaches to COVID-19-related workers’ compensation claims, ranging from implementing presumptions that essential workers contracted the virus on the job to shifting the burden onto claimants to prove the virus was contracted through the performance of their work. Employee rights groups have advocated for changes in state workers’ compensation laws to include the contraction of COVID-19 as a compensable exposure. In New York, for example, a bill was introduced in the Senate on March 23, 2020, in part to amend the workers' compensation law concerning coverage and benefits for employees who provided essential services during the pandemic. The bill proposed to create a presumption that COVID-19 was incurred in the performance of an essential worker’s duties, as the state’s current workers' compensation law requires employees to prove that any disability or death occurred while on the job.
Many states have enacted similar changes to ensure coverage for essential workers. In Alaska, the Governor signed a bill into law establishing a presumption of compensability under the Workers’ Compensation Act for emergency response and health care employees. Other states have decided to review COVID-19-related workers’ compensation claims on a case-by-case basis, such as Arizona, which noted that carriers may not categorically deny COVID-19-related claims but must review and investigate the matters in “good faith.” States who have enacted laws providing presumptions for certain workers who file workers’ compensation claims related to COVID-19 include the following: Arkansas; California; Kentucky; Michigan; Minnesota; Missouri; North Dakota; Utah; Washington; and Wisconsin. Other states with similar legislation pending include: Louisiana; Massachusetts; New Jersey; North Carolina; Ohio; Pennsylvania; South Carolina; and Wyoming.
Regardless of the jurisdiction, the burden will be difficult for non-essential workers, or those who are not in high-risk positions, to prove exposure in order to establish a claim and receive workers’ compensation benefits. See, for example, Middleton v. Coxsackie Corr. Facility, 38 N.Y.2d 130, 132, 379 N.Y.S.2d 3, 4, 341 N.E.2d 527, 528 (1975) (a New York case holding that a correction officer’s contraction of tuberculosis was determinable due to repeated exposure to persistent coughing culminating in a sudden breakdown); see also Spoerl v. Armstrong Pumps, Inc., 251 A.D.2d 915, 674 N.Y.S.2d 833 (App. Div. 3rd Dept. 1998) (affirming a N.Y. Workers’ Compensation Board Decision holding that it could not be determined when the infection entered decedent's bloodstream and he "did not sustain an accident or occupational disease as defined” in the state’s law).
Due to the vast nature of the virus, it will be challenging for claimants to pinpoint their exposure to support a claim that COVID-19 was contracted through the course of their employment. Presumably, states will establish criteria similar to those of the DOL for employees who do not work in high-risk environments. Governor Andrew Cuomo announced on Memorial Day that New York State and local governments will provide death benefits for frontline workers who die from COVID-19. Similarly, in Massachusetts, Representative Joseph P. Kennedy III proposed creating a fund to compensate families of essential workers who died from COVID-19 and to compensate workers for fiscal losses sustained due to contracting the virus. Therefore, it appears the nationwide legislative focus concerning workers’ rights is on essential workers who contracted COVID-19 on the frontlines. The determination of compensation for those employees who are not considered “high risk” and who allege to have contracted the virus through their employment remains questionable.
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 “Claims under the Federal Employees' Compensation Act due to the 2019 Novel Coronavirus (COVID-19)”, available at https://www.dol.gov/owcp/dfec/InfoFECACoverageCoronavirus.htm.
 FECA BULLETIN NO. 20-05, “Subject: Federal Employees Contracting COVID-19 in Performance of Duty,” Issued March 31, 2020, available at https://www.dol.gov/owcp/dfec/regs/compliance/DFECfolio/FECABulletins/FY2020-2024.htm#FECAB2005.
 “Guidance on Preparing Workplaces for COVID-19,” available at https://www.osha.gov/Publications/OSHA3990.pdf.
 "Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19),” dated May 19, 2020, available at https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.
 “Recording workplace exposures to COVID-19,” available at https://www.osha.gov/SLTC/covid-19/standards.html.
 2020 N.Y. State Senate Bill S. 8117—A, available at https://legislation.nysenate.gov/pdf/bills/2019/S8117A
 Bulletin Number 20-05, Alaska Workers’ Compensation Division, Dated April 10, 2020, available at https://labor.alaska.gov/wc/bulletins/20-05.pdf.
 COVID-19 Workers’ Compensation Claims, Industrial Commission of Arizona Substantive Policy Statement, Dated May 14, 2020, available at https://www.azica.gov/sites/default/files/SPS%20-COVID-19%20FINAL.pdf.
 Amid Ongoing COVID-19 Pandemic, Governor Cuomo Announces State and Local Governments Will Provide Death Benefits for Frontline Workers Who Died From COVID-19, Dated May 25, 2020, available at https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-announces-state-and-local-governments-will.
 Kennedy calls for COVID-19 essential workers’ und to give at least $250,000 to families of workers lost to disease, by Christina Prigano, dated May 21, 2020, available at https://www.bostonglobe.com/2020/05/21/nation/joseph-kennedy-calls-compensation-fund-benefit-essential-workers-harmed-by-covid-19-modeled-911-victims-fund/.