According to statistics from the Insurance Information Institute, workers employed in private industry suffered approximately 900,000 injuries and illnesses in 2018. Many of these injuries and illnesses produced workers’ compensation claims.
Total workers’ compensation claims have fallen sharply during the COVID-19 pandemic — due mainly to widespread workplace shutdowns and a marked increase in telecommuting. But the pandemic has nevertheless thrown a wrench into an already complex system of compensation for workers who sustain an injury or fall ill on the job. That’s because work-related COVID-19 illness is eligible for workers’ compensation — but determining whether a particular infection is eligible and whether it warrants a claim in the first place is not always clear-cut.
Workers’ Compensation Benefits & COVID-19: An Overview
Workers’ compensation benefits reimburse lost wages and medical expenses (including rehabilitation costs) resulting from covered work-related injuries or illnesses. Employers are financially responsible for workers’ compensation coverage, either through private insurance (for which they pay premiums) or self-insurance (basically, a separate emergency fund, though this is less common). In return, employees agree not to hold employers liable (by suing them in court) for injuries or illnesses acquired on the job.
Workers’ compensation programs are state-administered. A separate program run by the U.S. Department of Labor provides workers’ compensation benefits for Federal employees, regardless of location.
Every state but Texas requires employers with local operations to carry workers’ compensation insurance with exceptions — highly variable from state to state — for employers with very few or no employees and employers in specific high-risk industries, such as commercial fishing.
Workers’ Compensation Benefits: Definition & Parameters
Generally, “work-related” injuries and illnesses are those sustained during one’s regular job duties. That includes COVID-19 infection that can be traced to one’s workplace, to other places visited in the course of one’s job duties, or to individuals with whom the infected employee came into contact during their work.
Claim filing deadlines and benefit terms also vary by state, but employees usually have at least one year from the injury or illness onset date to file and can collect benefits for three to seven years. Because most COVID-19 cases resolve in a matter of weeks, rather than months or years, filers dealing with acute infection won’t need to claim benefits for anywhere near that long. However, mounting evidence indicates that some COVID-19 infections cause or exacerbate chronic health conditions, such as heart and pulmonary disease, that could affect workers’ ability to work over longer periods. In such cases, those with COVID-19 could be eligible to collect workers’ compensation benefits even after clearing the infection then collect long-term disability benefits if they remain unable to work after their workers’ compensation eligibility expires. Disability insurance policies do cover acute COVID-19 infection, though policy terms (particularly the “elimination period” before benefits kick in) can be restrictive enough to exclude mild and moderate cases.
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Recordkeeping & Reporting Requirements
State workers’ compensation regulations usually require reasonably prompt reporting of eligible injuries and illnesses — often within 30 days. It’s therefore in employees’ interest to report work-related injuries or illnesses, including confirmed COVID-19 infections, as soon as possible, even if they don’t seem serious. There’s no obligation to file a claim with the report. You can do that later.
According to a May 2020 guidance letter from the Occupational Safety and Health Administration (OSHA), employers covered by workers’ compensation regulations must report workplace-related COVID-19 cases when all three of the following conditions are met:
- The case meets the Centers for Disease Control and Prevention’s criteria for confirmed COVID-19 infection
- The case is deemed work-related
- The case meets at least one of the general recording criteria required by law, such as requiring medical treatment other than first aid or necessitating time off work for recovery
Whereas the first condition requires nothing more than a confirmed positive COVID-19 test and the third is usually evident from readily available sources like attendance records or workplace incident reports, the second test can be labor-intensive and is often hampered by incomplete information. OSHA assesses employers’ efforts to determine work-relatedness on three broad metrics:
- Reasonableness. OSHA expects employers’ investigations to include three parts: asking the employee how they believe they contracted COVID-19, discussing (while respecting employee privacy) the employee’s work and nonwork activities that could be responsible for the infection, and assessing the likelihood of exposure or transmission within the employee’s work environment.
- Evidence Available. OSHA expects the employer to incorporate all reasonably available information at the time of the investigation. The employer isn’t required to conduct a thorough medical investigation, but OSHA expects the employer to incorporate information learned after making the initial determination if that information affects the outcome.
- Evidence of Workplace Transmission. Absent a compelling alternative explanation, infection is presumed to be work-related if the employee works with multiple COVID-positive employees, had lengthy exposure with a particular customer or co-worker who later tested positive for the illness, or frequently interacts with the public in an area with sustained community transmission of SARS-CoV-2, the virus responsible for COVID-19. Infection is presumed not to be work-related if the worker frequently interacts with a COVID-positive person or persons outside the workplace or if the worker’s infection is isolated within their work environment (meaning no other colleagues test positive) and the worker does not frequently interact with the public in the normal course of their duties.
Presumption of Work-Related Infection in Certain Occupations
In certain occupations, substantiating the work-related nature of a COVID-19 infection is much more straightforward. These occupations have what’s known as “presumed compensability” — that is, COVID-19 infections in workers holding these occupations are presumed to be work-related and therefore eligible for workers’ compensation benefits unless the employer (or its insurer) can offer compelling evidence an infection is not work-related.
Presumed compensability regulations vary by state. The most common occupations and worker classes covered by these regulations are:
- First responders, such as firefighters and paramedics
- Hospital workers, including medical and nonmedical staff
- Health care workers more generally, including outpatient clinic employees
- Essential workers, an even broader category whose definition varies by state but typically includes grocery store employees, postal workers, and sanitation workers
Some states are even more generous. For example, California mandates presumed compensability for all workers who don’t exclusively work from home, retroactive to the first day of its statewide shelter-in-place order. Not all presumed compensability is retroactive, so it’s best to check with your local employment authorities.
For more detail about applicable compensability regulations in your state, refer to the National Council on Compensation Insurance’s master list of legislative actions on presumed compensability and the National Conference of State Legislatures’ list of legislative and executive actions on the same.
When It Might Not Make Sense to File a Workers’ Comp Claim for COVID-19
Under certain circumstances, filing a workers’ compensation claim for COVID-19 infection could be unnecessary or even counterproductive. That’s often the case when the ill employee is eligible for other forms of work-related financial assistance, such as unemployment benefits or already on paid job-protected leave.
The Employee Is Receiving Unemployment Benefits
If you contracted COVID-19 on the job and were subsequently laid off due to the pandemic’s economic fallout, you’re probably still eligible for workers’ compensation. However, applying — at least, in the short term — might not make economic sense. That’s because many states adjust unemployment benefits downward to offset workers’ compensation income or impose a cumulative cap on combined unemployment and workers’ compensation benefits drawn simultaneously. You’re more likely to find yourself in this position if your illness is relatively mild, you expect to return to work when economic conditions improve, and you’re eligible for expanded federal unemployment benefits during the pandemic ($600 per week for most unemployed workers).
The Employee Is Already on Paid Leave Due to COVID-19 Infection
In March 2020, a piece of coronavirus emergency aid legislation known as the Families First Coronavirus Response Act (FFCRA) dramatically expanded COVID-19-affected workers’ eligibility for job-protected leave under the existing Family and Medical Leave Act.
This provision requires employers with between 50 and 500 employees (and all government employers, regardless of size) to provide employees quarantining due to COVID-19 symptoms or exposure with two weeks of paid sick leave at their regular pay rate. That’s long enough to cover many workers with mild, relatively brief illness, as they’re likely to recover before running out of paid leave.
Eligibility for paid leave under the FFCRA does not affect eligibility for workers’ compensation. If you remain ill (or your condition worsens) after your paid leave period expires and your illness is work-related, you can apply for workers’ compensation benefits. However, depending on the rules in your state, you might not be eligible for workers’ compensation if you were quarantining due to COVID-19 symptoms and were unable to get a test that could confirm your illness.
The Infection Is Mild Enough to Safely Work Through
The severity of COVID-19 infection varies significantly from person to person. Though older people and those with certain underlying health issues face a higher risk of serious illness and death, the disease can be fatal for young and healthy people as well. It’s impossible to predict how any specific individual will respond.
That said, COVID-19 illness is often mild enough to work through, especially for white-collar workers who can telecommute during the pandemic and aren’t physically demanding. While your employer can’t legally fire you for filing a workers’ compensation claim or taking job-protected leave, you might prefer to work through a mild illness at home rather than face a crush of work when you return from an absence.
The Employee Acquired the Illness in the Course of Remote Work
The previous scenario assumes a white-collar worker who contracts COVID-19 in a traditional workplace setting and then transitions to telecommuting after their diagnosis. Employees who work remotely on a full-time basis are very unlikely to be eligible for workers’ compensation benefits in the first place since they don’t regularly come into contact with other employees. Of course, employees who become ill in the course of remote work (perhaps from a family member or after venturing out in public) can still take advantage of other safeguards, such as paid job-protected leave under an expanded FMLA.
The Illness Doesn’t Require Hospitalization or Other Medical Expenses
Many COVID-19 infections fall into a severity gray zone: too severe to work through comfortably but mild enough not to require hospitalization. Though difficult to endure in a physical sense, such infections don’t incur much in the way of medical expenses eligible for reimbursement through workers’ compensation programs. If this is the case for you, filing a workers’ compensation claim probably isn’t worth the effort unless and until you’re no longer eligible for job-protected leave under an expanded FMLA.
According to CalMatters, a digital publication covering California, at least 5,000 Golden State workers have filed workers’ compensation claims for COVID-19 infection since the pandemic began. While that certainly sounds like a lot, it’s a tiny fraction of the typical flow of workers’ compensation claims in the nation’s most populous state. January 2020, the last truly “normal” month for U.S. employers, saw some 50,000 claims filed in California.
Even if employers and insurers aren’t dealing with the expected crush of workers’ compensation claims, they need to understand their rights and obligations under the law for years to come. Even when the acute phase of the pandemic is but a memory and even if a reliable vaccine arises, experts anticipate COVID-19 will remain a persistent threat during the colder months, much like seasonal influenza. Unfortunately, that means many more work-related infections on the horizon.
Do you understand your eligibility for workers’ compensation due to COVID-19? If you’re an employer, do you understand your obligations under your state’s workers’ compensation regulations?