Workers’ Compensation Coverage of COVID-19 Illnesses

Each year, millions of workers are injured or become seriously ill because of their working environment. In fact, in November 2019, the Bureau of Labor Statistics (BLS) released their annual Employer-Reported Workplace Injuries and Illnesses Report stating that there were over 2.8 million nonfatal workplace injuries and illnesses during 2018. In certain circumstances, these affected workers may be eligible to receive workers’ compensation benefits under federal or state-specific insurance programs. During the coronavirus pandemic, the Occupational Safety and Health Administration (OSHA) has gone on the record stating that COVID-19 can be considered a recordable illness under the agency’s recordkeeping standards. The question becomes then, can employees file for workers’ compensation benefits due to a coronavirus infection? COVID-19 Coverage Under Workers’ Compensation According to the National Conference of State Legislatures, every state has its own unique workers’ compensation policies usually based on industry, occupation, and the size of the business. Generally, however, workers’ compensation does not cover certain illnesses like a cold or a flu that are considered “community-spread” illnesses. Community-spread illnesses usually cannot be directly traced to a specific workplace. COVID-19 has been classified by the Centers of Disease Control and Prevention (CDC) as an illness that can be community spread. During the COVID-19 pandemic, however, some workers are at a higher risk of exposure to the virus while at work. These include health care workers, mass transit operators, and grocery store workers. If an individual in one of those industries does contract coronavirus, it can be reasonably assumed that the infection occurred in the workplace. Just because an employee works in a high-risk industry, however, it does not guarantee that a COVID-19 infection would be covered under workers’ compensation. To try and add clarity to the issue, states are creating and updating laws focusing on COVID-19 workplace infections. State Response to COVID-19 In the wake of the large number of affected employees, some states are taking actions to extend workers’ compensation coverage to include first responders and health care workers impacted by coronavirus. A common way that some states have amended their workers’ compensation policies is to include that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This places the burden on the employer and insurer to prove that the infection was not work-related, making it easier for those workers to file successful claims. As of mid-April 2020, 23 U.S. states and territories had either enacted or have legislation pending addressing workers’ compensation coverage of COVID-19. The states that have already enacted COVID-19 provisions in workers’ compensation claims include: Alaska, Arkansas, California, Florida, Kentucky, Minnesota, New Hampshire, New Mexico, North Dakota, Utah, Washington, and Wisconsin. Employers in every state, however, should contact their local Department of Labor office to get the most up-to-date information on the laws that affect their businesses and COVID-19 workers’ compensation claims.