WORKERS COMPENSATION INSURANCE EXPOSURE TO COVID-19

There is a recurring word that continues to be expressed every time  we are discussing with our clients whether there will be workers compensation coverage for COVID-19  and that word is “MAYBE”.  Unfortunately, there is no magic pill for either treating this virus or as an answer as to whether states will cover these claims.  Every state, having its own specific workers compensation scheme, derives its determination of what is compensable from the language of legislative constructs.  The prevailing thought amongst most professionals is that the following considerations will be at the forefront of decision making:

1. The occupational considerations of the affected employee;
2. The jurisdiction’s decision to legislate a solution via mandatory coverage;
3. The respective insurance carrier’s decision on how to balance the exposure

at work compared to the exposure elsewhere in light of the jurisdictional limitations/directives for coverage.

                There is no disagreement that COVID-19 is a disease within the classification of a virus.  Many states provide no workers compensation coverage for “ordinary diseases of life” while others are creating coverages after the fact for occupations with a high degree of exposure.  We have already seen unions lobbying for grocery store workers to be designated as first responders, entitling them to a potential classification for coverage, hazard pay, increased benefits, and other benefits being made available on the state and federal level.  There are, however, many states (such as South Carolina) that do not classify a contagious disease as a compensable injury if the likelihood of contracting it inside of work is similar to the risk outside of work.  These states typically do not make exceptions for specific occupations, but in light of the devastating toll that COVID-19 is taking on our health care professionals, it is likely that most, if not all, will legislate coverage for these occupations.  Whether these jurisdictions expand this coverage beyond health care professionals will undoubtedly be state specific.

                Yet another interesting aspect of COVID-19 is the need to self quarantine (and presumably not work) without knowing whether you are positive for contracting the virus.  Without knowing whether you are positive, thousands, if not millions, of people  will be compelled to undertake extreme measures to protect themselves (and others).  Once again, a state by state analysis is necessary to determine whether exposure or symptom is the triggering event for compensability.  If the exposure is the triggering event, it would be expected that workers compensation  indemnity coverage would be triggered during that period of time when a person is precluded from working due to quarantine. 

                Similar to the approach states have taken with business interruption coverage, there is a trend to legislate a solution for a problem that was never anticipated.  Whereas some states are creating a slush fund for business interruption claims that would be administered by the insurance carriers, it is not clear whether there is any such slush fund being created to assist the insurance industry with these increased claims created by legislative edict.  So far it appears over 10 states have issued directives that insurance carriers are to provide coverage for COVID-19 claims.  While these directives vary, they appear to allow require allowances for testing and emergency department or urgent care visits with no deductibles, co-pays, or in network considerations.  Leading the charge has been Washington state, which has undertaken initial measures to push for coverages for its health care workers and first responders.

                The third significant issue will be the manner in which exposure is proven.  While first responders (including essential non-medical workers) will undoubtedly have a more viable claim than non-essential workers located at their homes, there are many considerations that will come into play for insurance carriers.  It will be hard to dispute that the front line healthcare professionals working long shifts and, in some cases, without the state of the art personal protection equipment, should not be provided protection since their level of exposure at work is a constant.  The “second tier” essential

workers such as grocery store employees, landscapers, truckers, etc. will be likely litigated claims that insurance carriers will want to establish a level of opposition to require proofs before agreeing to the compensability of the injury.  At the bottom of the ladder will be the stay at home employees who contract COVID-19 from family members or others. 

                Regardless of where these issues are leading, it is essential that common sense solutions prevail for this catastrophic occurrence.  As some carriers have noted, the insidious nature of COVID-19 means it will become more prevalent in society, which will only diminish a workers ability to prove their exposure was work related.  The fact that Dr. Anthony Fauci has already designated COVID-19 as a seasonal occurrence, stating that it will return in the Fall, warrants a careful look at how this current pandemic is addressed in the workers compensation arena as it will have repercussions for years to come.  The coming weeks will provide some insights as states seek to create a safety net for their constituents and create a system to allow some level of compensation.  How this will affect workers compensation insurance carriers is presently unknown, but if we see bills introduced similar to the business interruption bills put forth in New Jersey and Ohio, we will see a government supported response being administered by the insurance industry.   

Legal claims and developments from the coronavirus are occurring on a daily basis.  If you have questions or would like additional information on this or any related topic, the law firm of Mintzer Sarowitz Zeris Ledva & Meyers, LLP is available to assist you and will continue to monitor judicial and legislative changes.  For more information, contact the authors:  Steven Mitchel, Managing Partner of our three Florida offices, smitchel@defensecounsel.com; and Connor Milo, associate attorney in our Miami office, cmilo@defensecounsel.com.