COVID-19 AND WORKERS’ COMPENSATION CLAIMS

This is the second article in a series about how COVID-19 is changing Workers Compensation. Other articles include:

• Insurance Carriers and COVID-19: Five things to Consider to Set You Above the Rest
• Our New Normal: Returning to Work & its Impact to Employers and Employees

At the peak of the pandemic, front-line workers, and healthcare employers continued to work at their employer’s site. This left the possibility open to them contracting COVID-19. However, employers who followed safety guidelines as proposed by the Center for Disease and Control Prevention (CDC), as well as other state, county, and city guidelines did all within their power to ensure their employees were protected. Despite this, employees who did not follow safety procedures or were exposed to other infected individuals for an extended amount of time at a close distance left the possibility open for them to contract COVID-19. These situations would result in an employee filing a workers’ claim.

Employers are required to have workers’ compensation coverage to protect their employees in the event they are injured or become ill because of a work accident or incident. Workers’ compensation also provides protection for employers as this state-mandated benefit nullifies an employee’s ability to file suit against their employer to collect damages resulting from a workplace accident or incident. Each state has their own workers’ compensation program, and the laws governing their program are unique to that state passed by their legislative body.

During the pandemic, some states created new laws that dictated how workers’ compensation claims are handled when an employee files a claim alleging they got COVID-19 at work. In most circumstances, the burden of proof is on the employee to prove they contracted their illness while in the course and scope of their employment. However, some states created a presumption rule that protects front-line workers, hospital employees, and employees who contracted COVID-19 due to an outbreak.

VACCINES

The Pfizer, Moderna, and Johnson & Johnson's vaccines are the keys needed to safely and reasonably re-open small businesses, schools, workplaces, restaurants, gyms, and other venues that we have missed frequenting over the past year.

The following table is a comparison of these vaccines:

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Per the CDC, there is still a lot of unknowns regarding the vaccines, such as:

1. How well the vaccines prevent people from spreading the virus,
2. How long vaccines protect people,  
3. How well current vaccines are effective against newer COVID-19 variants, and
4. How many people need to be vaccinated before most people are considered protected.

With all of these unknowns, many employers are requiring their employees to obtain a vaccine prior to returning to work.

The Equal Employment Opportunity Commission (EEOC) has provided guidance to employers who are mandating employees obtain the vaccine. The below are a few highlights of the EEOC’s guidance:

• Employers can require employees to obtain a vaccination as per a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
• If an employee cannot obtain a vaccination due to a disability, employers must determine if that employee poses a direct threat to the safety of the business, then they may be excluded from returning to work. Efforts need to made to determine if a reasonable accommodation can be made for the employee.
• Employers can require employees show proof of their vaccination.

If employers require employees to obtain a vaccine, can an employee file a workers’ compensation claim if they are not feeling well post vaccination. In short, “yes”.

VACCINATIONS, WORKERS’ COMPENSATION, AND BEYOND

As noted in the table comparing the vaccines, The Pfizer and Moderna vaccine requires 2 shots over a period ranging from 21 to 28 days. And after the 2nd injection, the vaccines are fully protecting people after another 14 days. The Johnson & Johnson vaccine takes 28 days to be fully effective post injection. If at any point employees who are required to get a vaccine suffer severe side effects that preclude them doing their job duties, they can file a workers’ compensation claim. Whether the claim will be considered compensable would need to be investigated, and in some instances may be litigated, or left to a trier-of-fact for a final decision.

Those who work in the insurance field need to be asking their policyholders vital questions to understand their risk of exposure to COVID-19.

The evolution of future COVID claims, and vaccine-related claims remains a mystery. Since vaccinated individuals can still technically get COVID, will it be more difficult for an employee to prove they got COVID-19 at work? Seemingly, vaccinated individuals will be living a more-relaxed lifestyle where they are not wearing masks and not practicing social distancing on their own time. If this person got COVID-19, and filed a workers’ compensation claim, will it still get accepted, even if the employer require the employee to wear PPE and practice social distancing during work hours?

Further, will COVID-related workers’ compensation claims decrease over time? Will positive-COVID employees have less loss days, and an easier time returning to work?

Also, with the unknowns as posed by the CDC, there is risk that a vaccine will no longer be effective in an individual over a period of time. So it is quite possible for a vaccinated individual to no longer have immunity from COVID-19 without knowing it. This may impact one’s exposure, and probability of getting COVID inside, and outside of the workplace. Time will tell how long the vaccines are successful at protecting people.

Those who work in the insurance field need to be asking their policyholders vital questions to understand their risk of exposure to COVID-19. Example questions include:

1. Do you require your employees to get a vaccine?
2. For employees who are not able to get a vaccine, do you have accommodations in place for them?
3. Do you require your employees to wear personal protective equipment during work hours?
4. Do your employees social distance?

Despite having vaccines, we are not out of the woods yet. Time will tell on how vaccines will impact employers, employees, and the workers’ compensation insurance market.