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Work Comp Liability Rule Could be Tested by COVID-19

Workers’ compensation has always been a bit of a unicorn in the insurance world, complicating early determinations around COVID-19 claims and employer liability. While other lines of coverage draw a solid line around policy terms and conditions with few exceptions, a host of external factors can impact claims to injured employees. With coronavirus quickly turning into the event of a lifetime, it’s possible that some states will interpret employer liability differently than they have in the past.

Workers’ compensation in North Carolina and most other states does not pay an employee who contracts a viral or bacterial illness during the scope of a normal workday. Exceptions can be made for health care workers and emergency service personnel whose normal course of work puts them in direct contact with pathogens, but even then, strict criteria must be met.

But coronavirus is a game changer. The crisis has changed how we live and work overnight. Change on this kind of scale has the ability to disrupt long-held industry standards and even belief systems, to a degree. Consider, too, the impact a declared state of emergency may have on the industrial commission tasked with overseeing workers’ compensation rulings on a case-by-case basis.

Industrial commissions have long determined compensability for pathogen-born illnesses with a rule that asks a simple question: Was the employee at a greater risk of contracting the illness than the general public? The rule puts the burden of proof squarely on the employee. And while the coronavirus pandemic will change neither the rule nor the burden of proof in workers’ compensation hearings, we don’t yet know how it might complicate the way the rule is interpreted.

We are still in the early days of the COVID-19 crisis, and already, Kentucky and Washington have moved to guarantee workers’ compensation benefits for health care workers and first responders. Look for California and other states with programs friendly to traveling employees, defined as those who have no single, fixed place of business, to lead the way on how coronavirus claims are handled for certain non-traditional employees.

Months from now, the workers’ compensation story we may all be talking about is not sick employees, but workers injured doing unfamiliar tasks outside the usual scope of their job. As essential as multi-layer redundancy is to the business continuity process, make sure not to skimp on employee training.

Sentinel’s best advice right now to mitigate the potential for work-related COVID-19 claims is this:

  1. Continue to provide a safe and secure work environment for employees. These policies extend to remote work. In fact, the remote workplace is treated as an extension to the regular workforce, in terms of safety requirements. The federal government has issued a telework guide with best practices for human resources, safety and loss control, here.
  2. Encourage sick employees, and those who have been exposed to COVID-19, to stay home.
  3. Review absenteeism policies to ensure sick employees don’t feel they have to come to work.
  4. Allow employees to telework where possible.
  5. Ensure sick leave policies are flexible and consistent with public health guidelines.
  6. Emphasize and extend office cleaning and sanitation procedures.
  7. Avoid nonessential employee travel altogether. Put travel bans into place for high-exposure areas per the CDC’s website.
  8. File COVID-19 workers’ compensation claims just as you would any other work comp claim.
  9. Alert Sentinel that a claim for your employee has been filed by emailing us at: claims@sentinelra.com
  10. Report employee COVID-19 illnesses to OSHA, but only if the employee was exposed due to the nature of their job, i.e., healthcare workers, first responders, etc. Contact Sentinel if you are unsure about this reporting requirement.