Workers' compensation claims have already started rolling-in related to COVID-19, and in many cases these claims are from health care workers and first-responders. In some of these cases the Workers' Compensation Carriers for the employers of these personnel are preliminarily responding to the employees claim with "Claim Denied" citing that there is "no absolute proof that the employee contracted their case of COVID-19 as a result of their work...".
In one such case, here in Oklahoma, an EMT for a regional EMS who transported a COVID-19 patient in late February, then began experiencing symptoms early in March and was hospitalized on March 9th. While the EMS company supported the employee's claim, their insurance carrier still denied the claim citing "no proof".
As a result of similar occurrences in numerous other states many states are now considering imposition of so called 'Presumptive Rules or Clauses' with regard to Workers' Compensation for COVID-19 for certain categories of employees including health care workers and first-responders who become infected. While imposing such rules or provisions could add tens of billions of dollars in added costs for insurers who would undoubtedly seek to pass them on to employers, these mandates would assure that these necessary workers are protected from the impact of the pandemic's health and economic impact without workers' comp coverage.
While most 'regular diseases' to which the public is exposed are not covered under the occupational disease category for purposes of workers' compensation by most states, COVID-19 is not your 'regular disease' even if the entire public is potentially exposed to it. Accordingly, a number of states are recognizing the difference and responding. In two recent cases both Missouri and Arkansas have implemented changes in favor of their front-line workers. Other states are either in the rule-making, rule-review, or rule-challenge aspects of the process as I write this.
For more information on how COVID-19 has impacted worker's comp in small businesses, join our webinar presented by Matthew Fulton on May 6, 2020 at 2:00 p.m. Eastern Time. You can register here.
For this webinar, we're taking questions related to how COVID-19 has impacted worker's comp and small businesses and we'll try our best to answer them live during the webinar. You can submit questions here.
On April 8th Governor Parsons of Missouri directed the Missouri Department of Labor and Industrial Relations (DOLIR) to 'implement an emergency rule that will help ensure first-responders who contract COVID-19 are covered through workers' compensation.' In announcing the directive the Governor said, "Our law enforcement officers, firefighters, and EMTs are tireless public servants who compromise their own safety to ensure the safety of others. They risk themselves each and every day, and because of their duties, our first-responders are more likely to be exposed to COVID-19 while on the job.” Missouri's emergency rule will create a presumption that first-responders who contract COVID-19 did so in the line of duty and allow them to make a claim under the Missouri Workers’ Compensation law to cover the expenses incurred.
On April 22nd Governor Hutchinson of Arkansas issued an executive order that did not establish a presumption regarding emergency and front-line healthcare workers who tested positive were entitled to workers' compensation benefits, but it did suspend aspects of the usual statutory causation analysis, and expand the usual scope and class of employees eligible for coverage for infectious diseases. The worker must still demonstrate a causal relationship between the diagnosis of COVID-19 and their work in order to qualify for workers' compensation.
It is clear that elected officials appear to be taking a greater interest in the welfare of their health care workers and first-responders when it comes to their occupational exposures to COVID-19 and the health injuries and potential short and long-term illnesses and possible death that could result from this plague. As a result they are taking active steps to force either presumptive clauses or mandatory coverage provisions for such workers in the event they contract COVID-19.
Ultimately there will of course be legal challenges between claimants and insurance carriers, as well as between insurance carriers and States over these provisions and the contested claims that are related thereto. Let us hope that those cases are resolved quickly so that needy claimants receive the care, and compensation they are entitled to, in a timely manner.