People and organizations across the US are feeling the effects of the COVID-19 pandemic and responding accordingly. Many businesses are already implementing policies to minimize the potential spread of the virus and protect their employees — which, during a public health emergency, should be their top priority. But employers must also review their workers’ compensation insurance policies and prepare to file claims in the event that their employees acquire COVID-19.
While COVID-19 is a health crisis that must be managed principally by medical experts, employers have a crucial role to play in keeping workplaces safe and communicating with employees.
Employers should focus on helping to slow the virus’s spread. Among other actions, employers may wish to encourage employees to stay at home if they’re feeling ill or if a family member is sick. They may also consider allowing employees to work from home more frequently.
As the outbreak continues, communication will be key. Relying on guidance from reputable sources, such as the World Health Organization and the Centers for Disease Control and Prevention, employers should reinforce recommendations aimed at promoting good hygiene, including encouraging employees to:
Before any employee tests positive for COVID-19, it’s imperative that employers have plans in place, so they can take immediate action if necessary. Among other elements, these plans should contemplate potential response actions in the event of a confirmed case, including whether to send other employees home and/or ask them to self-quarantine, whether to encourage other employees to seek medical care, and how to disinfect the workplace.
Many employers may now be asking an important question: If one of our employees contracts COVID-19, will they be entitled to workers’ compensation benefits?
The answer can be complicated.
Although workers’ compensation statutes and case law can vary by state, compensability generally requires that an illness or disease be “occupational.” This essentially means that the illness:
As COVID-19 continues to spread, it could become increasingly difficult to determine whether an employee has contracted the illness in the workplace. Health care workers, for example, who are infected through contact with patients could expose not only their coworkers, but their families, neighbors, and strangers, too.
Whether a specific case is compensable will be determined by the facts established during an investigation of the claim, as well as the governing law in the jurisdiction where the claim is reported. And because there is no single “test” that can prove whether an illness or disease is compensable, it may ultimately come down to a decision by a court or state workers’ compensation board.
Employers should begin preparing for potential workers’ compensation claim filings related to COVID-19. Employers should establish strategic, multi-stakeholder investigation teams that bring together representatives from risk management, claims handling, workplace safety, defense counsel, and other pertinent groups. These teams should establish processes to quickly identify claims, which are likely to be complex and could be costly, and route them to qualified senior adjustors who are capable of determining compensability and working collaboratively with investigative teams.
If an employee files a workers’ compensation claim related to the current outbreak, an employer should:
In addition to these specific steps, employers should encourage regular communication among team members and discuss with them any claims under active investigation and relevant updates from health authorities.
In jurisdictions — such as Texas — where employees may not be protected by workers’ compensation systems, similar considerations apply. Employers in these jurisdictions should assemble multi-stakeholder teams, encourage regular communication, and carefully evaluate potential claims, but these actions should support the investigation and defense of liability claims seeking damages. The investigation and direction of such a claim should involve legal counsel, in accordance with an employer’s standard liability claims protocols.
For more information, contact your Marsh representative.