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COVID-19 & Workers’ Comp FAQs

COVID-19 & Workers’ Comp FAQs

Summary:

Except for some hospital workers, medical transit workers, EMTs and other employees in jobs classified as high risk or very high risk of contracting COVID-19, California law provides that almost all COVID-19 Workers’ Comp claims can be denied. Even among those high risk employees, the claim can be  investigated to confirm workplace infection.

Form 5020 should be filed if a high risk employee tests positive, regardless of whether they file a claim. Similarly, if a high risk employee or anyone with an accepted COVID-19 claim develops serious problems from the disease, it must be reported to CalOSHA.

Litigated Claims:

While the scope of the coronavirus pandemic is evolving and the future unknown, if handled correctly, the workers’ compensation exposure that it presents can be mitigated.

RTGR Law has always tackled the most challenging claims and controversies on behalf of California public agencies and employers. That’s what we do. Our team is ready to help right now with legal strategies. If you would like strategic help on a COVID-19 claim or any complex case, send an e-mail to your closest RTGR Law office

Also, for further review of California Workers’ Comp law, including the Compensability of COVID-19, you can watch RTGR Law’s On-Demand Webinars, available 24/7: RTGR Law’s On-Demand CE Webinars.

Frequently Asked Questions:

We’ve compiled employer questions about COVID-19 and our answers in this regularly updated post. Send your questions to your closest RTGR Law office. We’ll respond to you with the answer and post your question here.

Q: Should I offer a DWC-1 Claim form if my employee contracts COVID-19?

A: Not unless their job poses a high risk of exposure to COVID-19. So long as current medical information continues to indicate that COVID-19 is a risk to the general population and not just to workers, similar to other community-based communicable diseases, employers are not required to offer a DWC-1 claim form to workers who contract the disease, because diagnosis alone does constitute injury.

This holds true unless the facts suggest that because of the employee’s particular job duties, the employee was at a materially greater risk of contracting the disease than the general public.

For guidance as to the types of jobs that may pose a materially greater risk of contracting COVID-19, we should look to the categories of jobs classified as high risk or very high risk of contracting COVID-19 in OSHA’s recently published “Guidance on Preparing Workplaces for COVID-19”.  From the list, we gather that the following employees should be offered a DWC-1 claim form if they contract the disease:

  1. Healthcare workers (e.g., doctors, nurses, dentists, paramedics, emergency medical technicians) directly caring for or otherwise exposed to known or suspected COVID-19 patients;
  2. Healthcare or laboratory personnel collecting or handling specimens from known or suspected COVID-19 patients;
  3. Medical transport workers (e.g., ambulance vehicle operators) moving known or suspected COVID-19 patients in enclosed vehicles.

Q: Should I give a DWC-1 Claim form to my employee if they ask for one?

A. Yes. If an employee ever asks for a claim form, always give it to them.

Q: Does an employer need to report on a Form 5020 employees who are diagnosed with COVID-19, even if they don’t file a DWC-1?

A: Not unless the employer has knowledge of an occupational injury. This is the threshold requirement for a Form 5020 filing: “California law requires employers to report within five days of knowledge every occupational injury or illness which results in lost time beyond the date of the incident OR requires medical treatment beyond first aid.”

Just because an employer becomes aware that an employee may have contracted a virus common to the general public, does not constitute knowledge of a workplace injury triggering the duty to file the 5020 form. If the the employee’s job posed a materially greater risk to them of contracting the disease than the risk faced by the general public, as explained above, then the 5020 form should be filed.

Q: Does the employer have to report an employee’s COVID-19 to CalOSHA?

A: Yes, if employee’s work-related COVID-19 causes serious illness or death.  Labor Code section 6302, effective January 1, 2020, amended the definition of serious injury or illness that must be reported to CalOSHA to include all inpatient hospitalizations, regardless of the length of stay, unless the hospitalization is for medical observation or diagnostic testing.  The previous requirement that inpatient hospitalizations last for more than 24 hours was removed. Therefore, COVID-19 would qualify as serious if an employee requires any hospitalization other than for observation and for testing, assuming the employee’s contraction of COVID-19 was work-related, as discussed above and below.

Q: Are COVID-19 volunteers covered for WC? Specifically, in circumstances where a City coordinates the effort of City resident-volunteers who are providing a service (e.g. volunteers who are staffing intake at an emergency shelter), will the City assume WC liability if the volunteer contracts COVID-19?

A: Probably not. According to Labor Code section 3363.5, public employers may choose to extend workers’ compensation coverage to volunteers that perform services for the organization. Workers’ compensation coverage is not mandatory for volunteers, as it is for regular employees. The Labor Code requires adoption of a resolution by the City Council so declaring the volunteers to be treated as employees for WC purposes, in order for them to be deemed to be an employee of the agency while performing such service. Simply relying on volunteers during this time of urgency, perhaps at the direction of a department head or safety officer, does not constitute adoption of a resolution by Council.

Q: If the City employee who we designate as a Disaster Service Worker (DSW) gets injured during the assignment, he/she will be automatically covered by Workers’ Compensation if they contract COVID-19, correct?

A: Not necessarily. They are treated like any other employee who might come down with COVID-19. For a discussion of why COVID-19 is not be compensable in many cases, please see the COVID-19 compensability discussion below or watch RTGR Law’s On-Demand Webinar, Worker’s Comp Compensability of COVID-19, available 24/7 along with other free webinars: RTGR Law’s On-Demand CE Webinars.

Q: If an employer elects to pay salary continuation to all employees during the coronavirus shut down, do those same employees who were already off on TD also keep receiving TD in addition to salary?

A: No. Salary Continuation paid pursuant to statute, such as a local ordinance passed by a City Council or Board of Supervisors, or else because of an MOU or established employer practice, is a complete offset to TD benefits, so long as the salary paid is equal to or greater than the TD rate.  The employee is not owed both TD and salary, just one or the other. No penalty is owed for paying salary in lieu of TD, per Labor Code section 4650(d) and (g). However, if the adjuster stops TD payments because salary is being paid, they must send timely notice to the employee per Title 8, Cal. Code of Regs. 9814.

  • 9814. Salary Continuation: In relation to periods of temporary disability, where an employer provides salary or other payments in lieu of or in excess of temporary disability indemnity, the claims administrator or employer shall comply with the notice requirements of this article which apply to temporary disability. In addition, the claims administrator or employer shall include a full explanation of the salary continuation plan with the initial notice.

Q:How does the Families First Coronavirus Relief Act (H.R. 6201) Impact Workers’ Compensation Benefits?

The Families First Coronavirus Relief Act (H.R. 6201), may impact potential COVID-19 Workers’ Compensation claims. Because the claimant has the burden of proving injury in these claims (see compensability discussion below), the claims will likely be delayed initially for investigation. In the meantime, the claimant may be eligible for the Emergency Paid Sick Leave provisions under H.R. 6201.

If an employee becomes eligible for Emergency Paid Sick Leave (EPSL) under these circumstances, the employer should administer these leave benefits, without for waiting for acceptance or denial of the Workers’ Comp claim.  If that claim is later accepted and retroactive Workers’ Comp indemnity benefits are arguably owed, there may be an off-set or credit applicable to the retroactive payment of TD benefits or 4850 pay, in a manner akin to the offset that would apply to SDI benefits paid by the EDD, or salary continuation benefits paid by the employer (see salary continuation discussion above).

We don’t know if the EPSL offset or credit is certain, but employers should be mindful of the possibility. RTGR Law’s COVID-19 team will be tracking these developments carefully.

Q: Are communicable diseases like COVID-19 compensable under California Workers’ Compensation Law?

A: In most situations, no. Our research at RTGR Law has found that coronavirus claims are most often not covered by workers’ compensation. The risks of contracting COVID-19, just like contracting other community-wide communicable diseases, are risks of commonalty in general.  In most cases such risks are not particular to or characteristic of any specific employment. In California, as in most states, the employee-claimant has the initial burden of proof by reasonable medical probability that their injury or illness arose out of and occurred during the course of their employment. It is not enough to show that the job created some exposure to a contagious disease.  Instead, the claimant must prove that the workplace exposure was the medically-probable cause of contracting the viral infection.

Workers’ Comp claimants can satisfy this burden by proving with substantial medical evidence that, by virtue of their particular employment, the risk of contracting COVID-19 was materially greater than the risk faced by the general public, and that it was improbable that the claimant contracted the disease while off duty or away from the workplace.

For guidance, we can look to OSHA’s classification of of various workplaces and work operations into risk zones based on the likelihood of occupational exposure during a pandemic. These four risk zones may also be useful to a medical-legal evaluator in determining whether a claimant’s job presented a statistically material greater risk of contracting the disease than the risks present in our ambient surrounding communities.

OSHA’s four risk zones are: very high exposure risk, high exposure risk, medium exposure risk and lower exposure risk. Arguably, medium exposure risk and lower exposure risk jobs do not present materially greater risks to those workers of contracting the disease, than are already presented to the general public. In other words, there are medium and low risks of exposure while present and engaged in the community outside of the workplace.

On the other hand, those jobs which are high and very high exposure risks according to OSHA, are more likely to factually satisfy that burden of proof.  Those jobs include certain healthcare, medical laboratory, morgue/mortuary, and medical transit workers.

Q: Is COVID-19 presumed compensable for Firefighters or Police Officers?

A: No. The compensability analysis above applies to all employees, including public safety workers, because unlike meningitis, MRSA and tuberculosis, for example, coronavirus is not among the illnesses that are statutorily presumed compensable. In any particular case, the claimant may need to disprove or rule out that the disease was just as likely contracted outside of the workplace, such as when shopping at the grocery store or traveling to and from work.

However, this may change.  It was recently reported that first responders and health care workers in Florida and Minnesota are urging their governors to order that they be covered for workers’ compensation benefits, including during periods of off-duty quarantines. Also, certain California labor groups sent letters to Governor Gavin Newsom with a call for an Executive Order mandating a workers’ compensation presumption of COVID-19 for some essential workers in the public safety and healthcare fields, among others. Whether such an Executive Order would be constitutional in California is debatable. Most recently, the National Fraternal Order of Police, which represents more than 350,000 law enforcement officers in the U.S., posted “An Open Letter to Our Nation’s Governors” to social media, demanding enactment of COVID-19 presumptions for law enforcement, first responders and health care workers.

Additionally, AB 664 and SB 1159 were introduced recently in the California Assembly and Senate. AB 664 would create a “conclusive” presumption of COVID-19 injury, apparently even without testing results, for first responders and healthcare workers.  Whether a conclusive presumption of injury, as opposed to a rebuttable presumption, is constitutional under California workers’ compensation law is unknown. SB 1159 would create a rebuttable presumption of injury for “critical workers.”

For a further discussion of existing Safety Officer Presumptions as well as the Worker’s Comp Compensability of COVID-19, you can watch RTGR Law’s On-Demand Webinars, available 24/7: RTGR Law’s On-Demand CE Webinars.

Q: Does this mean employers can simply ignore the COVID-19 pandemic?

A: No. Employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.“ Section 5(a)(1) of the Occupational Safety and Health Act (OSHA) of 1970.  We should all work together to keep workplaces safe from the spread of this virus and other risks wherever possible. OSHA offers a detailed COVID-19 webpage with resources for preventing exposures.

Q: What should employers do to care for their employees?

A: Its not hard to foresee that infected people who regularly come into contact with the general public as part of their jobs, such as retail employees and those who travel for work, or even clerks in an office who work together in close proximity, will claim that the disease was contracted on the job. If so, then the understandable human urge is to offer help by perhaps accepting those claims and paying benefits for lost time (due to the effects of the illness or medically-mandated quarantines) as well as medical treatment costs. But the reality is those claims are often not legally compensable.

Instead, employers should assure their employees that everything is being done to keep the job free from recognizable hazards, including by taking measures to reduce the spread of contagious viruses whenever possible.  Also, during this time of heightened anxiety, its a good opportunity to promote employee wellness and EAP programs.

Employers can also make sure that employees are well aware of all the benefits they may qualify for without regard to causation, such as sick pay, new FFCRA benefits including Emergency Paid Sick Leave under H.R. 6201, FMLA/CFRA leaves of absence, PTO, EDD benefits such as SDI, job accommodations, group health insurance, short-term and long term disability benefits. In short, make sure employees get everything that the employer can offer, without putting the agency or business at unnecessary risk at the hands of the Workers’ Compensation system.

Conclusion

While the scope of the coronavirus pandemic is evolving and the future unknown, if handled correctly, the workers’ compensation exposure that it presents will be limited and can be mitigated.

We will be monitoring these developments carefully and posting updates here and on our LinkedIn page. Be sure to follow us to stay current.

RTGR Law tackles the most challenging claims and controversies on behalf of California public agencies and employers. Our team is ready to help right now with legal strategies. If you have questions about COVID-19 or would like strategic help on any complex case, send an e-mail to your closest RTGR Law office:

Oakland   oak@nullrtgrlaw.com

Los Angeles   la@nullrtgrlaw.com

Sacramento   sac@nullrtgrlaw.com

San Jose   sj@nullrtgrlaw.com

Orange County  oc@nullrtgrlaw.com

Van Nuys   van@nullrtgrlaw.com

San Diego   sd@nullrtgrlaw.com

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