Janell M. Stanton, JD, myHRcounsel
Unfortunately, when it comes to workers’ compensation, there have been a lot of recent changes. One of the biggest changes has been the creation of rebuttable presumptions for frontline workers that many states have passed. As with most things related to employment law, the details of the presumptions depend on the state that your company operates in. States can be different about who they consider a frontline worker to be. In all states, it’s healthcare workers. Other states include police officers, firefighters, or EMTs in the definition of frontline worker. In a lot of states, grocery store workers are considered frontline workers. Basically, people who are considered essential to the ongoing functioning of our society such as people who work in distribution centers like Amazon could be considered frontline workers subject to presumption laws.
Rebuttable Presumptions for Frontline Workers
For frontline workers, there is now a rebuttable presumption that completely changes how workers’ compensation claims are analyzed. Typically, when an employee gets ill or injured in the workplace, they make a claim, but they need to go through an analysis to see whether the illness or injury actually did occur at the workplace or while performing work for the employer. Now that has been changed. Many states are now saying that if an employee must report to the employer location to work, and the worker contracts COVID-19, a presumption of compensability is created under workers’ compensation.
The rebuttable presumption laws presume that employees who must report to the employer’s premises to work that contract COVID-19 must have contracted it while at work. Then the burden shifts to the employer to prove that the employee did not contract the virus at work. We know that it’s very easy to contract COVID-19 through breath particles and droplets. Due to the nature of COVID-19 transmission and the fact that the virus can be contracted in so many places, it would be very complicated for an employer to prove that the worker did not contract COVID-19 at the workplace.
Increase in Claims
Employers can expect an overall increase in workers’ compensation claims from their employees who become ill with COVID-19.
Any business where a company’s employees cannot telework are really going to bear the brunt of these increased claims. Places like manufacturing, meat packing plants, for example, are anticipated to be heavily impacted by a glut of workers’ compensation claims here in the next several months.
One thing that is highly recommended to prevent workers’ compensation claims is telework. I know that a lot of businesses that have the ability to telework don’t like it. But if it is at all possible for your business to continue allowing employees to work from home, that’s definitely recommended throughout the course of COVID-19. Obviously, if your employees are not coming into your office and they contract COVID-19, there’s no possible argument that that COVID-19 was contracted at your workplace, and therefore workers’ compensation claims aren’t going to make sense. So, for those businesses where telework is not possible, complying with OSHA and CDC guidelines for environmental and administrative controls to mitigate exposure is going to be your best bet for trying to avoid workers’ compensation claims.
For some practical guidance in what types of environmental and administrative controls to implement, employers can access a recent publication OSHA created that will help companies mitigate exposure risks. The publication recommends employers implement measures that we have all heard about such as providing disinfectants, disposable towels, hand sanitizer, no touch garbage cans, making sure there’s hand soap and hand washing stations around, requiring regular hand-washing, and discontinuing use of commonly used comfort items like coffee pots and water fountains.
As far as environmental control recommendations, OSHA recommends measures such as increasing ventilation and physical distance between employees. For example, does your HVAC system allow you to install air filters that can help clean the air? Can you separate your employees if you’re in a very close space? Is it possible to space employees further apart; perhaps by keeping every other cube or office empty or rotating employees’ workdays so some days a set group of employees work from home, and others work in the office.
Regardless of your company’s industry, it is vitally important that all companies adopt as many protective measures as possible to limit the spread of COVID-19 in the workplace. If employees have a lower risk of contracting COVID-19 at work, then that is going to reduce your risk of workers’ compensation woes.