According to the National Conference of State Legislatures (NCSL), diseases like the flu or COVID-19 which involve community spread are not generally covered by workers' compensation laws because they are not tied directly to employment. At least 19 states have created exceptions to the rule in order to provide workers' compensation benefits for workers in inherently risky employment situations, such as firefighters and first responders who contract the illness. The laws presume these jobs are intrinsically dangerous and consider the diseases as employment-related and covered under workers' compensation.
The impact of COVID-19 on American workers spurred advocates of workers classified as essential by the U.S. government to ask states to change the laws to make COVID-19 covered under workers' compensation laws. Essential workers are generally frontline healthcare workers and support staff, as well as field and first responders (firefighters, police, etc).
The essential classification during COVID-19 also includes workers in employment fields not considered inherently dangerous to health before COVID-19:
- Grocery store workers
- Supply chain workers
- Pharmaceutical companies, distributors, and stores
- Computers and electronics industry
- Home building supplies
- Gas stations and auto repair
- Paper goods manufacturers (toilet paper, paper towels, etc)
- Cleaning/disinfectant manufacturers
Workers' compensation laws are state laws. Therefore, in most cases, the answer to whether workers' compensation laws cover COVID-19 illnesses will be resolved on a case-by-case basis, under 50 different state laws. The following factors come into play when states consider how to resolve the critical COVID-19 question.
Is the injured employee a frontline healthcare worker or first responder?
Several states have taken the first steps toward introducing legislative and regulatory initiatives that provide frontline healthcare workers, first responders, and government employees with workers' compensation benefits when they contract COVID-19 in the workplace.
At this time, 14 states extend workers' compensation coverage to incorporate COVID-19 as a work-related illness. Six states passed legislation that creates a presumption of coverage for various worker classifications, and several more have legislation pending. Here are a few examples of state legislation/executive orders that address COVID-19:
- Alaska, Minnesota, Utah, and Wisconsin limit workers' compensation for COVID-19 to healthcare workers and first responders.
- The Governor of Arkansas issued an Executive Order covering all workers whose jobs expose them to COVID-19 (or are likely to expose them). Workers have to apply for benefits, no presumption exists.
- All essential workers are covered under workers' compensation laws in Illinois.
- All workers are covered under workers' compensation laws in Wyoming.
- Four states used their executive powers to institute presumption policies in favor of healthcare workers and first responders. This means the burden of proof falls on the state to prove that the illness was not work-related.
- California and Kentucky expanded workers' compensation through executive action to cover essential employees like grocery store staff and other employees that contract COVID-19 and do not work exclusively at home. California has legislation pending on behalf of essential workers, healthcare/hospital, first responders, and those employed to fight against COVID-19.
- Washington State announced that healthcare workers and first responders would receive wage-replacement benefits under workers' compensation when ordered to quarantine by a physician.
Did the worker's injury or death arise out of the course and scope of employment?
Employees seeking workers' compensation benefits generally must prove that their illness or injury is work-related, that is it arises out of their employment and occurs in the course of employment. There are exceptions to injuries while at the place of business, such as "voluntary recreation” or doing something not allowed while on the premises or misconduct. Also, injuries while coming to and from work are not generally covered.
Workers' compensation often covers injuries that take time to develop, such as:
- Stress or repetitive conditions
- Occupational diseases,
- Physical and psychological conditions from stress at work
- Pre-existing conditions that were aggravated by work.
Occupational injuries are defined by the Occupational Health and Safety Administration (OSHA) as "any wound or damage resulting from an event in the work environment."
On the other hand, OSHA provides examples of occupational illnesses such as skin diseases or disorders, respiratory conditions, poisoning, hearing loss, heatstroke, heat exhaustion, sunstroke, freezing, decompression illness, and others.
How does your state handle occupational diseases?
As noted earlier, workers' compensation benefits and rules depend on state law. States classify occupational injury or disease by using various criteria. The following describes a few of those criteria.
- Relation to Employment. Several states cover all diseases, for example, Alabama, Arizona, Connecticut, Delaware, District of Columbia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, and others. Some require a work-related component, for example, Alaska, Arkansas, California, Colorado, Florida, Georgia, New York, North Carolina, North Dakota, Oklahoma, and Texas.
- Peculiarity/Causes. A few states have peculiar points about the causes of disease. For example, Arizona singles out HIV as covered if the employee handles bodily fluids and specifically exempts sexual activity and illegal drug use as causes of the illness. California's law provides that for police officers and firefighters who develop hepatitis, meningitis and cancer the presumption of compensability is rebuttable only if not related to employment or if the carcinogen bears no reasonable relation to cancer. Idaho requires that specific time periods for exposure apply to Silicosis.
- Ordinary Diseases of Life. Virginia and Alabama cover ordinary diseases of life, subject to usual evidence standards of proof.
- Presumptions. In Iowa, a coal miner who was employed for at least ten years and who dies from respiratory disease is presumed to have pneumoconiosis. In Nevada, a police officer or firefighter who works continuously for five years and develops heart disease is presumed to have contracted the disease through his employment. Lung illnesses for police officers/firefighters only require two years to be related to employment. In New York, with respect to correctional officers/court officers/court reporters/court interpreters as well as mental health security officers and security treatment assistants, the presumption is that exposure to bodily fluids through employment is injurious exposure if later diagnosed with a blood-borne disease.
Partners Are Essential
COVID-19's impact gave the U.S. a new definition of essential workers. It also forced many people to realize that workers' compensation coverage provides a pathway to compensating essential workers who, in many instances, have no other health benefits or sick days.
Workers’ compensation is not covered by federal law unless workers are federal government workers. It's up to each state to revise its laws regarding COVID-19 to provide workers' compensation coverage for its residents. As the COVID-19 situation continues to evolve in 2020, more states may enhance their workers' compensation laws to reflect the inclusion of COVID-19-related illnesses.
Alert Communications' call center intake staff works efficiently and professionally to screen clients that meet your state's criteria for workers' compensation claims. We look forward to partnering with you to help you respond to the growing demand for workers' compensation benefits in your geographic area.