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COVID-19

COVID-19 Update

Last updated August 11 at 3:36pm

Could COVID-19 constitute a compensable injury in your state? Are you up to date on how to handle a possible spread of coronavirus throughout your company? MVP has outlined how the coronavirus could affect workers’ compensation claims in Missouri, Kansas, Iowa, Illinois, Oklahoma, Nebraska and Arkansas. Employment topics including FMLA, ADA & EEOC, Leave Policies and Confidentiality are also discussed so employers can follow the appropriate course of action while dealing with this novel virus.

Coronavirus – is it compensable?

Generally, a regular disease that the general public is exposed to is not covered under the occupational disease category. This includes influenza, colds and MRSA – even if the worker is a healthcare worker. These diseases can be contracted in infinite places; not necessarily at the worker’s place of employment. However, if a worker catches a more serious disease, one that could easily be identified as coming from their place of employment and not endless other sources, they could be eligible for workers’ compensation under the occupational disease category. Workers’ compensation cases involving coronavirus will likely only have a possibility of being compensable if the worker is in the healthcare field and has been specifically exposed to the virus.

Impact of COVID-19 on existing workers’ compensation claims

Protocols to help prevent the spread of COVID-19 could begin to have an impact on existing workers’ compensation claims as medical providers begin screening patients and postponing non-emergent office visits and procedures. Currently, clinics are asking if patients have traveled to high risk areas in the past month and/or are exhibiting symptoms consistent with COVID-19, and if the answers are yes, the patients may be required to postpone a routine office visit or put off a procedure that can wait. As the situation with COVID-19 continues to evolve, additional protocols may be implemented resulting in delays in medical treatment in non-emergent workers’ compensation situations. Injured workers rely on these office visits for updates in their work restrictions, to move forward with orthopedic surgeries, to receive physical therapy, in order to return to work. As a result, these delays may impact an injured worker’s temporary disability benefits.

In addition, business interruption as a result of the spread of COVID-19 can impact workers’ compensation benefits. In the event businesses are temporarily closed, or a layoff occurs, changes in temporary benefits could be triggered for injured workers who are off work or on light duty for a work injury. Workers in the hospitality, travel, and event venue industries are already beginning to experience this.

The impact that treatment delays or business interruptions may have on injured workers will vary from jurisdiction to jurisdiction. The legal and medical impacts from COVID-19 continue to evolve causing our recommendations and best practices to change. We are doing our best to keep our clients updated as these changes go into effect. As the recommendations in these scenarios may also vary greatly depending on the facts of the specific claim, our MVP attorneys are available to answer questions about these scenarios as they arise.

Read more to find out specifics in each of our jurisdictions.

Missouri

Kansas

Iowa

Illinois

Oklahoma

Nebraska

Arkansas

Employment Issues

Missouri

UPDATED April 8, 2020
Governor Parson has directed the DOLIR to implement an emergency rule creating a presumption that if a first responder contracts COVID-19, then they became infected in the line of duty. This is a rebuttable presumption and if an employer can prove that the first responder’s exposure was not in the line of duty, they can defend or deny the claim. The press release from the Missouri Governor’s office can be found HERE

Section 287.067 of the Missouri Workers’ Compensation Act defines “occupational diseases” as “an identifiable disease arising with or without human fault out of and in the course of the employment.  Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease.”  It goes on to state that “The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.”

Subsection 7 of Section 287.067 goes on to state: “Any employee who is exposed to and contracts any contagious or communicable disease arising out of and in the course of his or her employment shall be eligible for benefits under this chapter as an occupational disease.”

Practically speaking, the occupational disease portions of the Act in Missouri could certainly include coronavirus exposure.  The key inquiry will be: “whether the job duties increased the employee’s risk of contracting the disease?”  With that in mind, people in the healthcare field could make decent arguments that exposure to, and subsequent development of, coronavirus is a compensable work-related occupational disease if they are in a situation where they are treating patients with the diagnosis.  Also, employees that have been deemed essential, while not having the rebuttable presumption that if they contract the disease that is is work related, they could still argue that they are at an increased risk if they have to engage with other employees or the general public. Also, any employees that are working around a large number of co-employees and are not required to wear any PPE, would also make the argument that they are at an increased risk of contracting COVID-19.

As with any case, employers and their insurers could conceivably be responsible for medical bills, TTD, PPD and potentially death benefits. Although the medical evidence originally suggested any long term disability from contracting the disease would be minimal, there are some indications that individuals could have more long term respiratory and vascular conditions. This could raise PPD values in cases.

We anticipate that the argument by claimant attorneys in attempting to relate COVID-19 claims to their work exposure will be by excluding the claimant’s exposure to anyone who tested positive for COVID-19 among their immediate family and friends. They will also likely put on evidence that the claimant had little if any contact with individuals outside of work at grocery stores, gas stations, retail stores, etc. While this may obviously be incorrect, it could prove hard to disprove by the employer.

Many employers have started contact tracing programs to ensure the safety of their workforce. While this is obviously important, it could help the claimant prove that they contracted COVID-19 based on their employment if there are other employees who have tested positive. If possible, contact your workers’ compensation or employment counsel so they can request this contact tracing investigation be done in anticipation of litigation in order to protect the investigation process and materials from being discoverable in litigation.

Contact Steve McManus with Questions in Missouri


Kansas

The Kansas Workers’ Compensation Act includes supplemental Article 5a, which deals with occupational diseases exclusively. “Occupational diseases” are defined by K.S.A. 44-5a01(b) as “only a disease arising out of and in the course of the employment resulting from the nature of the employment in which the employee was engaged under such employer, and which was actually contracted while so engaged.” When present, occupational diseases are included as “injuries” under the Act, and specifically require death or “disablement” of a worker, meaning an employee is actually incapacitated from performing his or her work, either partially or totally.

The disease must result from the “nature of employment,” defined as a particular hazard of the disease, which is greater than the general risk and the risk of other occupations or trades, which distinguishes the employment from other occupations.

The diseases falling under this section must also have a “special risk” that is “connected with the particular type of employment” and must have “resulted from that source as a reasonable consequence of the risk.” The statute excludes “ordinary diseases of life and conditions to which the general public is or may be exposed outside of the particular employment, and hazards of diseases and conditions attending employment in general.”

Despite these rigorous requirements for proving a compensable occupational disease claim, the Kansas Act could include coronavirus exposure. The key inquiry will likely be the “nature of employment” creating a particular hazard of the disease. This will place healthcare workers, nursing home employees, first responders, and other medical providers in a unique position to make decent arguments that exposure to, and subsequent development of, the coronavirus is a compensable work-related occupational disease. The success of these potential claims will hinge on actual exposure to the virus through treatment of patients with the coronavirus. As for the general office employee or warehouse worker, it will be much more difficult to successfully bring a workers’ compensation claim for exposure to the coronavirus since most of these occupations do not include a particular hazard of the coronavirus to which the general public is not exposed.

Overall, as is the case in other states, the more the coronavirus spreads, the better the chances are of defending claims by non-healthcare workers. As with any case, employers and their insurers could conceivably be responsible for medical bills, TTD benefits, and PPD benefits. For most cases, PPD will be very minimal or a non-factor given the reported temporary nature of the virus. The key areas of exposure to employers and insurance carriers will likely be TTD from missed work along with medical bills for treatment of coronavirus symptoms.   

Contact Cliff Stubbs with Questions in Kansas


Iowa

Iowa passed legislation on June 19, 2020 granting businesses, nursing homes and medical facilities immunity from COVID-19-related civil lawsuits, except under specific circumstances. Under the COVID-19 Response and Back-to-Business Limited Liability Act, businesses, nursing homes, medical facilities and non-profits like churches and schools are now protected from lawsuits by defendants who are seeking damages related to COVID-19. The only exceptions are for cases that resulted in hospitalization or death. Companies that knowingly placed people in harm’s way can also be sued. The bill also protects companies that produce disinfectant, cleaning supplies and personal protective equipment from lawsuits, unless they knowingly gave people defective products.  

Iowa has not passed any legislation directly pertaining to workers’ compensation and COVID-19 cases, and it remains to be seen how the court will handle these types of claims. However, it appears COVID-19 claims me either be brought under Iowa Chapter 85 pertaining to occupational injuries or Iowa Chapter 85A pertaining to occupational diseases. Both Chapters require the Claimant to generally prove the following:  

  1. That the Claimant sustained an Injury or Disease when contracting COVID-19 (This will likely require a positive COVID-19 test result); 
  2. That the Claimant’s injury or disease was caused by their employment with the insured. (The injurious exposure to COVID-19 occurred at work); and 
  3. That their claimed disability is causally related to contraction of COVID-19.  

How the Claimant proves this depends on whether the claim is brought under Chapter 85 or 85A. Again, COVID-19 claims can likely be brought under either Chapter 85 (injuries) and 85A (diseases) – but not both. In Iowa, an “injury” is distinguished from a “disease” by virtue of the fact that an injury has its origin in a specific identifiable trauma or physical occurrence or, in the case of repetitive trauma, a series of such occurrences. A disease, on the other hand, originates from a source that is neither traumatic nor physical.  

Under the Iowa Occupational Disease Statute found in Chapter 85A, in order to constitute a compensable injury, the occupational disease must arise out of and in the course of the employment. It must have a direct causal connection with the employment following as a natural incident from an injurious exposure occasioned by the nature of the work. Iowa Code § 85A.8. It also must be incidental to the character of the business, occupation or process in which the employee was employed. The disease must appear to have its origin in a risk connected with employment and to have resulted from that risk. The disease need not be expected or foreseen and it must not follow “from a hazard to which an employee has or would have been equally exposed” outside the employment.[1]

The Iowa Supreme Court has provided some guidance regarding the establishment of causation in occupational disease and stated that to prove causation of an occupational disease, the claimant need only meet the two basic requirements imposed by the statutory definition of occupational disease:

  1. The disease must be causally related to the exposure to harmful conditions of the field of employment; and
  2. Those harmful conditions must be more prevalent in the employment concerned than in everyday life or in other occupations.

To prove causation of an occupational injury claim brought under Chapter 85, the claimant must prove that his injury arose out of and in the course of his employment with the defendant employer. 

In the case of coronavirus disease 2019 (COVID-19)[2], a primary question that should be asked at the outset of a claim for benefits in a case like this should be; “Did the nature of the worker’s employment bring the worker into direct contact with anyone known to have COVID-19?” If yes, the next question in the analysis should be, “Did the worker have an increased likelihood of contracting COVID-19 in their workplace as compared to the general public?” If yes, there would be a high likelihood of compensability. Under these circumstances, a diligent investigation should be undertaken to discover any possible alternative sources for exposure (e.g. travel history, identification of other sick family members or friends, prevalence of the virus in the Claimant’s community, and specific lifestyle habits or hobbies that may bring the Claimant in contact with the virus.) 

[1] A footnote in McSpadden v. Big Ben Coal Co., 288 N.W.2d 181 (Iowa 1980) explains: “We do not construe this … to also mean that the claimant’s disease should be excluded because it is one which members of the general public may acquire under ordinary circumstances, provided that the claimant’s particular disease arose from the peculiar hazards of his employment.” 288 N.W.2d at 191–92 n. 5.

Contact Kathryn Johnson with Questions in Iowa


Illinois

Updated April 28, 2020

The Illinois Workers’ Compensation Commission has repealed the recently-adopted Emergency Amendment that reversed the burden of proof for employees who contract COVID-19 allegedly at work. This action follows Sangamon County Circuit Court Judge John M. Madonia’s issuance of a temporary restraining order (TRO) on Thursday, April 23, 2020, that essentially blocked the recently-adopted Illinois Workers’ Compensation Rule that went into effect. The TRO was entered in light of a lawsuit filed on April 22, 2020, against the Emergency Rule maintaining, among other things, that the Illinois Workers’ Compensation Commission did not have the appropriate rulemaking authority to enact such a Rule.

The Emergency Amendment adopted by the Illinois Workers’ Compensation Commission, generally speaking, created a rebuttable presumption that any First Responder or Front Line Worker who tests positive for COVID-19 has a compensable work accident under the Illinois Workers’ Compensation Act. First Responders include police, fire personnel, EMTs, and paramedics. Whereas, Front Line Workers include an extensive list of workers, such as grocers, pharmacists, retailers, delivery services, gas station employees, teachers, and other employees currently working during the COVID-19 pandemic. Although it did not automatically make all claims involving COVID-19 compensable, it did shift the burden of proof onto the employer to prove COVID-19 was not contracted in the course of employment.

With the repeal of the Rule, workers’ compensation claims involving COVID-19 will be treated as occupational disease events subject to the details explained below.

Section 1(d) of the Illinois Workers’ Compensation Act defines occupational diseases as “a disease arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment. Such aggravation shall arise out of a risk peculiar to or increased by the employment and not common to the general public.” 820 ILCS 310/1(d).

The statute goes on to provide the causation standard, providing that “a disease shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin or aggravation in a risk connected with the employment and to have flowed from that source as a rational consequence. Id. An employee shall be conclusively deemed to have been exposed to the hazards of an occupational disease when, for any length of time however short, he or she is employed in an occupation or process in which the hazard of the disease exists. Id.

In short, to obtain compensation for contracting medical conditions such as COVID-19, the employee would need to prove two things: (1) he or she was exposed to COVID-19 at work, and (2) he or she is at a greater risk of contracting COVID-19 at work than in his or her non-employment life. Likely, this increases the likelihood of compensable cases at work environments, such as healthcare facilities, daycares, schools, etc., where the risk of contracting COVID-19 is higher than in everyday life outside of work.

The Illinois Workers’ Compensation Commission has previously found somewhat similar cases compensable in situations where an employee proves they were exposed to and contracted hepatitis while performing their job duties at work. These cases are almost always found compensable in healthcare settings, where employees are pricked with needles, causing them to contract the specific medical condition.

Generally speaking, in Illinois, the standard for proving occupational disease cases for illnesses similar to COVID-19 is a high bar and difficult to prove. But it appears there have been some exceptions made for healthcare workers to the general rule, reducing the high bar of the compensability standard. Typically, it is difficult for employees to prove that they would not have been exposed to or contracted COVID-19 outside of work , but there are certain instances – especially in healthcare settings – where an employee could prove a compensable condition for contracting COVID-19 at work.

Contact AJ Sheehan with Questions in Illinois


Oklahoma

In Oklahoma, occupational disease is defined under Title 85A, Section 65. While an occupational disease can be compensable and entitle a claimant to benefits, as related to coronavirus, we do have defenses. 

The relevant sections of the statute are as follows:

D. 1. “Occupational disease”, as used in this act, unless the context otherwise requires, means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee or naturally follows or unavoidably results from an injury as that term is defined in this act. A causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.

2. No compensation shall be payable for any contagious or infectious disease unless contracted in the course and scope of employment.

3. No compensation shall be payable for any ordinary disease of life to which the general public is exposed.

F. 1. An employer shall not be liable for any compensation for an occupational disease unless:
a. the disease is due to the nature of an employment in which the hazards of the disease actually exist and is actually incurred in the course and scope of his or her employment. This includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course and scope of his or her employment.

Essentially, in Oklahoma –

  1. There must be a causal connection between the occupation or employment and the occupational disease shall be established by a preponderance of the evidence.
  2. No compensation unless the disease was contracted in the course and scope of employment.
  3. No compensation for any ordinary disease of life which the general public is exposed.
  4. No liability for occupational disease unless the disease is due to the nature of employment and actually incurred in the course and scope of employment.

We anticipate the Oklahoma Workers’ Compensation Commission will handle coronavirus claims like MRSA claims and employees in healthcare settings will have an easier time proving it.  Those who do not work in settings with increased chance of exposure will have a harder time proving the infection took place in the course and scope of employment.

Contact Patrick Parr with Questions in Oklahoma


Nebraska

Occupational disease is defined by statute in Nebraska, as follows:  “Occupational disease means only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment and excludes all ordinary diseases of life to which the general public is exposed.”

Case law has added the following: “The requirement of the statute is that the cause and conditions of the disease be characteristic of and peculiar to the employment and that the disease be other than an ordinary disease of life.  The statute does not require that the disease be one which originates exclusively from the employment.  The statute means that the conditions of the employment must result in a hazard which distinguishes it in character from employment generally.”

The standard in Nebraska is as follows:  The plaintiff has the burden to prove by a preponderance of the evidence that the disease was contracted in the course of and arising out of the employment, and that the disease has caused a disability.

The two factors here that favor a finding that compensation is not payable for coronavirus contracted in the workplace are “ordinary disease of life” and “exposure in excess of the general public.”  While coronavirus is new, the sheer number of those infected seems to be in favor of a finding that it is an ordinary disease.  Disease contracted in the normal workplace would seem to not exceed the general public’s exposure.

That could well be different for workers whose jobs put them at an enhanced risk for contracting the disease, such as healthcare workers.  There is a greater likelihood that benefits would be awarded in workers’ compensation in cases of workers who can prove that they contracted the disease through exposure in the workplace and the workplace exposed them to a higher concentration of the disease than other employments.

If found compensable, benefits in most cases should be limited to medical expense and temporary indemnity benefits.  There is, however, exposure for death benefits in those cases where the worker dies as a result of the disease. There are now concerns that some individuals may experience more serious and long lasting health issues as a result of the disease which suggests the possibility of permanent disability benefits.

Contact Gregory Worth with Questions in Nebraska


Arkansas

Updated April 22
Governor Hutchinson issued an executive order addressing COVID-19 and workers’ compensation claims. While this order does NOT establish a presumption that emergency and front-line healthcare workers who test positive are entitled to benefits, it does suspend aspects of the usual statutory causation analysis, expands the usual scope, and class of employees eligible for coverage for infectious diseases. The worker must still demonstrate a causal relationship between the diagnosis of COVID-19 and their work. Read the full executive order HERE

Arkansas Code Annotated 11-9-601(e)(1)(a) defines occupational diseases as “any disease that results in disability or death and arises out of and in the course and scope of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury…”

The statute goes on to further indicate in subsection 601(e)(2) that “no compensation shall be payable for any contagious or infections disease unless contracted in the course of employment in or in immediate connection with a hospital or sanatorium in which persons suffering from that disease are cared for or treated.” 

Subsection (e)(3) goes on to further indicate that “no compensation shall be payable for any ordinary disease of life to which the general population is exposed.”

If the Arkansas Worker’s Compensation Commission determines that coronavirus is of sufficient contagion numbers to qualify as any “ordinary disease of life,” then these exposure cases will not be found compensable.  If not, or if no determination is made by the Commission, then compensable cases would be limited to those trades and professions where direct exposure occurs to persons being treating for the virus already, namely healthcare workers at hospitals and clinics designated as quarantine centers.  A plain reading of the statute would seem to also include emergency personnel like police/fire/EMT who may be exposed to contagious individuals “in the course” of their employment, even though the locale of their position is not centered at a hospital or clinic where patients are being treated.  Beyond those limited instances and professions, we have a strong case for denial or coronavirus cases in Arkansas under an equal exposure argument to the general population.

Contact Christopher Moberg with Questions in Arkansas


Employment Issues

FMLA Issues with COVID-19

FMLA permits employees to take up to 12 weeks of unpaid leave if they have a “serious health condition” or are caring for a qualified family member who has a “serious health condition.” The Department of Labor has stated that the flu can be a “serious health condition,” and since COVID-19 has similar symptoms it likely qualifies as a “serious health condition.” However, FMLA leave cannot be taken by an employee out of a fear for contracting the virus – the employee or a family member must have contracted it to use FMLA.

Leave Policies

Ensure that your leave policies continue to be applied in uniform ways – if you allow some employees to take paid leave for COVID-19, apply that policy evenly. Additionally, the CDC has advised that employers not require a doctor’s note for COVID-19, as many physicians are or will soon be overrun with patients requesting visits for this issue.

Confidentiality of Employee Health Information

If an employee has been exposed to or diagnosed with COVID-19, remember that this is confidential health information that should not be shared by an employer with its employees. If you need to inform your employees of potential exposure, limit any communication to advising that an unnamed employee has been exposed or diagnosed with COVID-19. 

The ADA and EEOC Pandemic Exceptions

Typically, the ADA prohibits employers from making disability-related inquiries to employees, which includes any questions likely to elicit information about a disability. However, the EEOC has pandemic guidelines that allow employers to ask employees who are exhibiting symptoms whether they have any medical conditions that make them vulnerable to COVID-19. Further, if the pandemic becomes more severe, employers can begin to make disability-related inquiries and/or require medical examinations even for asymptomatic employees.

Contact Ryan Denk with Employment Law Questions


Ensuring the safety of the employees in your business is the best way to mitigate risk, but more importantly it is the right thing to do. In the event an employer is faced with a claim for compensation of a COVID-19 related injury, the employer and/or their insurance carrier is encouraged to consult with legal counsel before making a decision on compensability. The attorneys at MVP Law are here to help you legally navigate this novel threat.