The COVID 19 coronavirus pandemic is growing rapidly, and so too are employers fears that they could be on the hook for a workers’ comp claim if an employee contracts the virus. Experts say there could be workers’ comp exposure from the pandemic but note that California’s workers’ comp rules set a fairly high bar for conditions that are widespread and highly communicable.
The question is … Is there coverage? The answers are maybe, yes, and no.
“There are no categories of disease excluded from California workers’ comp…but even so, the fight to prove AOE/COE can be difficult, which is why we have so many presumptions for public safety officers and firefighters,” says Ellen Langille, general counsel for the California Workers’ Compensation Institute. “Without a presumption, most employees have to prove more than mere exposure – there has to be causation.”
AOE/COE means arising out of employment or in the course of employment and is the initial bar in determining whether a workers’ comp claim might be compensable. If the injury or illness cannot be connected to the employment, then it is not compensable. It is the applicant’s burden of proof to establish this connection by a preponderance of the evidence.
Communicable diseases like the common cold or pneumonia may get passed around through the workplace, but Langille notes that compensability is unlikely. She points out that it is practically impossible to prove that the worker’s exposure to such a common condition came from the workplace and not from the general community.
“There has to be direct evidence of work exposure. If the exposure communicable disease is ubiquitous, in that exposure could occur everywhere, and there is no evidence of any specific exposure in the course of employment, then the employee will likely not prevail,” she notes. “For coronavirus, if the employee can show that he worked in close proximity to a co-worker who tested positive for the disease, then the employee stands a good chance of prevailing. But if the defense can show that the employee’s neighbor or mother-in-law also tested positive, all bets are off as far as compensability.”
Governments are tracking the exposures – at least at this time – so government involvement in where the exposure happened is likely. As – or if – exposures grow that becomes more unlikely.
These other potential avenues of exposure, and thus potential defenses, are becoming more prevalent as the epidemic spreads. There are numerous cases now in the United States of “community transmission” of the virus to individuals who have not traveled to the infected areas and have not had contact with individuals known to have the virus. More clusters of cases are expected to emerge, and some experts suggest that employers take note of any outbreaks in their region of operation for a potential defense down the road.
Liability aside, many employers are taking precautions to limit employee exposure to the pandemic, including limiting travel, canceling meetings, and in some cases having employees work remotely if possible. Microsoft and LinkedIn have announced plans for increased use of telecommuting by employees. Companies are also pulling out of conferences. Many events are being canceled outright.
Jonathon Tudor, spokesman for State Compensation Insurance Fund, says the carrier this week eliminated all non-essential business travel, including to industry events. They also constructed resource pages on their company intranet for employees to look up information, and are reviewing operations with an eye towards having more people work from home. “It’s a fluid situation right now,” Tudor says.
Thomas Steinbrenner, a senior vice president at Hub International, says that he’s been advising clients to curtail work travel, but if they have had workers traveling on business to take steps to limit their exposure. “If the employee that’s coming back has any symptoms at all, then they definitely should not be coming into work if they’re not feeling well. They should go get medical treatment,” he says. “And if they’ve been in an area where there’s been cases that have been reported, or they feel like they may have been exposed, then they should also go seek treatment and not come into work.”
Steinbrenner notes that it’s a case-by-case analysis. “I don’t think you can basically have every single employee that’s been traveling out of the country go see a doctor before coming back to work,” he says. “You have to try and narrow it down. Are they coming from an area where there is much exposure? Keep track of the news of where they are reporting cases.”
The federal Centers for Disease Control is recommending that employers actively encourage sick employees to stay home. Those with symptoms of acute respiratory illness should not go to work until they are free of fever or any other symptoms for at least 24 hours without the aid of any fever-reducers or symptom-altering medicines. The agency recommends that employers review their sick-leave policies to make sure they are “flexible and consistent with public health guidance” and to communicate these policies with employees.
If an employee reports to work with acute respiratory illness symptoms, such as a cough or shortness of breath, or develops these symptoms during the workday, the federal agency recommends separating them from other employees and sending them home immediately.
Employers should also encourage proper hygiene to limit the potential spread of any contagions. Frequent handwashing with soap and water for at least 20 seconds is recommended, as is routine cleaning of frequently touched surfaces in the workplace.
Many employers are installing hand cleaner dispensers around offices.
Providence Pubs COVID Protocols
Providence Publications, which publishes Workers’ Comp Executive, Cal-OSHA Reporter, and other titles and our corporate cousin Compline, which publishes various online databases, has instituted a pandemic preparedness plan in light of the Coronavirus outbreak in the United States, which has been declared by the World Heath Organization an official worldwide pandemic.
Much of the Providence Pubs’ workforce already works remotely, including this Workers’ Comp Executive editor, so we have that element of social distancing covered. We all have company cell phones, and computers and the company uses VoIP so we can put any person anywhere there is internet, and they are operational. Our tiny staff operates from four states and three countries. And calling our main number will connect you with our Helpdesk either in California or Indiana.
Travel is an important part of our news gathering. The company has suspended all work-related air travel and attendance at noncritical industry meetings and events and conventions. Fortunately, this is the electronic age, and teleconferencing is a potential option, as well as simply using the phone. We have used teleconferencing extensively in our work environment, and in our relationships with customers.
All staff have submitted what we call our “Beer Truck Memo,” detailing how we do our jobs in case one or more of us have an extended absence. In other words, how would another employee do our job if we got hit by a beer truck. Our financial team has taken action to assure that there are no interruptions of payroll, vendor payments, or collections in the event of a major disruption.
Hopefully, none of this is necessary, but for a small company, it’s crucial to plan for such eventualities. “Our company family is so tiny that each of us plays a critical part and one of us out creates a ‘disturbance in the force,’” says CEO J. Dale Debber in a message to our employees. “Even if [COVID] is overblown, this provides a good excuse for us to take steps to protect ourselves and the company in ways that big companies take as a matter of course.”