Workers’ compensation coverage for COVID-19 crisis difficult to claim

As calls for workers to stay home and stay safe mount, workers who fear they have been exposed to the coronavirus ask what benefits are available should they get sick. Many of those questions revolve around workers’ compensation rights.

Generally, workers’ compensation covers employees who are injured at work. In many states, occupational illnesses are also covered. Occupational illnesses are those the employee encounters at work such as exposure to certain chemicals or carcinogens. What workers’ compensation does not cover, though, is an illness contracted away from work.

Despite pronouncements by politicians seeking to reassure an increasingly nervous public, getting workers’ compensation coverage for COVID-19, the illness caused by the coronavirus, will not be easy. To get coverage, workers will have to prove that it is more likely than not that they contracted the virus at work. As the number of positive tests mounts in the general population, that gets harder to prove.

Employees who want to prove they contracted the disease at work may run into legal obstacles. For example, the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) prevent prying into co-workers’ health records to see if they were exposed. For employees with good health coverage and sick leave, the hassle of filing a workers’ compensation claim may not be worth the fight.

Further, many health insurers have voluntarily cut or completely waived all cost-sharing provisions for COVID-19 testing and treatment. A March 24 blog posting on America’s Health Insurance Plan’s (AHIP) website listed 83 national and regional health insurers offering such waivers. With little or no cost to test for and treat COVID-19, workers are unlikely to seek workers’ compensation benefits.

COVID-19 exposure is obviously greater for first responders and healthcare workers. As essential personnel, they are exempted from “stay home” orders. They have little choice but to interact with the public, and by the nature of their jobs, they are more likely to encounter an infected person.

Several first responder advocacy groups, including the Fraternal Order of Police, have drafted legislation for states to label COVID-19 an occupational disease under workers’ compensation for first responders. With that classification, workers’ compensation would cover any COVID-19 testing or treatment for first responders. In effect, for first responders and healthcare workers, the presumption would be they contracted the disease at work.

The echoes of 9-11 ring through the first responders call for legislation. In those cases, many first responders suffered through long-term, and in many cases, ultimately fatal ailments. Further, evidence from China suggests that prolonged exposure to COVID-19 positive persons leaves healthcare workers with a large viral load that can be fatal even for workers who would not normally be classified as high risk.

First responders also may run into a shortage of N95 masks. First responders in the Dallas, Texas area are reporting they are using around 200 masks per day and stockpiles are depleting faster than they can be replaced. Lack of proper protective equipment was the basis of several lawsuits the 9-11 first responders filed.

Employers and workers’ compensation carriers, of course, want to keep costs as low as possible. Covering COVID-19 is a potentially expensive proposition. For example, the Centers for Disease Control (CDC) is recommending 14 days of quarantine following a positive test. Applying that scenario to workers’ compensation in Pennsylvania, for example, immediately qualifies the worker for full benefits. Under Pennsylvania’s workers’ compensation rules absences of 7 to 14 days only qualify for partial benefits. Full benefits apply to longer absences.

COVID-19 will exact a toll on medical costs and worker productivity. Employers, workers’ compensation carriers, and employees are positioning themselves to get the best possible outcome.