Coronvavirus Q&A

Q. Is Coronavirus covered under Workers’ Compensation?

A. For a claim to be compensable under Workers’ Compensation it must satisfy a 2-prong test of AOE/COE. It must Arise Out of Employment and occur in the Course Of Employment. So, the answer could be yes or no, and would be determined on a case by case basis.  For example, a Health Care Worker who is caring for patients with the disease and contracts the disease, it could be considered compensable.

Q. How is it different than just catching a cold or flu?

A. That is a good question, and one that should be asked. If the sick person was not exposed to any greater danger at their place of work than the general public, then it would not likely be compensable, especially given the pandemic status. There is an estimated 14-day incubation period for the Coronavirus, so pinpointing exactly when and where a person contracted the disease may be difficult.

The Coronavirus can affect the entire world population so there would have to be something “peculiar” to an occupation for the disease to be compensable. (For example, black lung disease among miners; hepatitis among health care workers.)

Q. What if my employee says she has contracted Coronavirus, and she wants to file a claim?

A. An employee can allege an injury or illness that must then be investigated, and the facts of the case will determine acceptance or denial.  In California, that determination must be made within 90 days of the employer’s knowledge of the claim. Therefore, report the alleged claim immediately and ask your carrier or TPA to “delay and investigate.”

Q. What is the Insurance Carrier’s position on accepting/denying COVID-19 Workers’ Compensation claims?

A.
Per Travelers: “We are encouraging our customers to report a claim if the employee is alleging a workplace exposure to the virus. Each claim will be investigated upon its own merits to determine compensability.”

Per Berkshire Hathaway: “BHHC will be issuing an official memo shortly regarding the Coronavirus. If an employment subjects a person to an increased risk compared to the general public, the injury is more likely compensable. Coverage for any allege case will depend on the specific facts and circumstances of the claim. Workers’ compensation coverage applies to bodily injury by disease, provided the bodily injury by disease is caused or aggravated by the conditions of employment and the employee’s last exposure occurs during the policy period. Quarantine alone is not considered a bodily injury by disease. Please note exposure to a virus does not meet the definition of injury”

Per Liberty Mutual: “Coverage evaluations will be based on a thorough review of the facts and circumstances of each claim. For specific questions related to coverage, please work with your broker to understand the nature of your policy terms and conditions. Claim reporting for COVID- 19 claims should be performed as with any other claim. Please err on the side of caution and report any suspected COVID-19 related claims, as soon as practical. We offer a number of claim reporting options, including online via our customer portal.”

Q. Do I have to file a Workers’ Comp claim if my employee is diagnosed with COVID-19?

A. Contracting coronavirus is not in-and-of itself a work-related injury. Regulations 14300.5 (2) (H) states that illness such as the common colds or flu are not work related.

However, if you have an employee who has been placed in a known hazardous environment, for example a hospital, clinic, nursing home, etc. with known Covid-19 cases, be on alert to the employees who have potential symptoms.

If the employee’s work environment places then in a hazardous area greater than the general public and they contract the Covid-19 virus, give them the Employee Claim Form and submit the claim to the carrier to investigate and determine compensability. Employer’s Report of Occupational Injury or Illness

Or if an employee says that they want to file a Workers’ Comp claim, then give them the Employee Claim Form and file the claim with your carrier to investigate.

Stay in touch with both your employee and the claims adjuster during the 90-day deadline of investigation to determine compensability.  We may find that adjusters are only able to tell you limited information. Ask to be copied on the letter to the employee of acceptance or denial.

Q. Do I have to list a COVID-19 claim on my OSHA 300 log?

A. If the claim involves more than First Aid (lost time/ doctor’s visits) then log it on your OSHA 300 log. If it is later determined to be non-compensable, it can be removed.
Per OSHA: if an employee contracts COVID-19 at work, it is considered a work-related illness and thus recordable: www.osha.gov/SLTC/covid-19/standards.html

Q. What if my employee contracts Coronavirus, then transmits it to his family. Are the family members covered?

A. Workers’ Compensation is a no-fault system that covers employees for injury or illness that is work related.

The first step is to investigate the circumstances to determine if the employee’s illness is compensable under the 2-prong test of AOE/COE. (Arising Out of Employment and in the Course Of Employment.)

If an employee files a claim for Coronavirus, submit it immediately to your insurance carrier and closely manage the adjuster’s investigation to ensure  thorough discovery and analysis. The deadline for denial is 90 days from the employer’s knowledge. If the carrier does not deny the claim by the 90th day, it is presumed compensable.

The standard Workers’ Comp policy also includes a provision for Employers’ Liability (usually with a $1 million limit). While it is rare, there could be coverage under this section of the Policy, if the employee’s illness is found to be compensable.

It is uncommon to find coverage in this section of the W.C. Policy, however, the COVID-19 is an uncommon exposures.

Four major types of claims that are covered under the Employers’ Liability section of the Workers’ Compensation policy.

1. Third Party over Action. This is a lawsuit that is filed by a third party who is seeking indemnity because it was held liable for an employee injury.

2. Loss of Consortium. This is a lawsuit filed by an injured employee’s spouse for loss of services of the spouse who was injured.

3. Dual Capacity Suits. These are brought by an injured employee against the employer when injury arises from a product the employee manufactures.

4. Consequential Bodily Injury. These lawsuits are filed by a family member for injuries that are caused by that family member as a consequence of the employee’s injury.

For additional information, please contact us at info@esminsite.com