Workers who contract COVID-19 on the job may be eligible for workers’ compensation benefits, if the claim is found valid via a comprehensive medical record review. Many U.S. states have already passed regulations that require health insurers to cover essential workers who have been infected with the virus. Essential workers are primarily healthcare and frontline workers, and based on individual states, this category may include other occupations as well. When presumption laws are expanded to include COVID-19, it could affect the workers’ compensation industry.
What Are Presumption Laws?
Presumption laws pertain to occupational diseases and employment, and typically apply to specific employee classifications and diseases. In the wake of COVID-19, many states have been expanding these statutes to cover workers’ compensation claims related to COVID-19 as well.
What is a presumption law? A presumption law describes the conditions where an injury to a worker is presumed to have happened while working, and should be provided compensation. Normally, in workers’ compensation, the injured worker is expected to produce evidence for the injury, but in this case, the burden of proof for the source of the injury falls on the employer.
Historically, presumption laws have covered PTSD, cancer etc. for first responders/firefighters given that it is reasonable to presume that they developed these diseases or sustained injuries in their line of work. However, workers such as bus drivers, grocery workers, correctional officers and those in certain other occupations may also be able to prove that the nature of their work put them at higher risk than the general public.
In such instances, they may receive workers’ compensation benefits provided they can produce the required evidence. If the employer or insurer can successfully counter the claim, the employee may not get the benefits. With regard to COVID-19, it is still not clear how presumption laws will impact workers’ compensation eligibility and the industry on the whole.
Presumptive Claims May Be Valid for Long-haulers
Presumptive claims become relevant with the emergence of long-haul COVID symptoms. At present, a small subsection of the COVID-19 patients, have been classified as long-haulers but there is a possibility of additional adverse long-term symptoms emerging.
The executive orders/laws passed by several U.S. states either create a legal presumption of workers’ compensation coverage for certain employees who contract the virus, or make it easier for the worker to file a workers’ comp claim for COVID-19. Some other state agencies have issued policy guidance that vary in terms of the workers covered (occupations/industries) that fall within the regulations, executive orders, or policy guidance.
Here is some information from nolo.com.
- New Jersey has a law that presumes that COVID-19 is a job-related illness if an essential worker gets the disease during a time period when the worker was working away from home during the public health emergency. To rebut this presumption, the employer has to prove that more likely than not, the worker was not exposed to the virus while at work. This NJ law covers workers including those performing essential functions with proximity to the general population.
- Similar presumptions are provided by the states of California, Michigan, and Minnesota for certain healthcare workers and first responders. California extends the presumption to any worker, except those working for very small employers, who contract the virus when their workplace experiences an outbreak of COVID-19.
- In Illinois, a temporary regulation applies a presumption such as the above to some healthcare workers and first responders, as well as essential workers who interact with the general public or at least 15 coworkers. This law allows employers to rebut the presumption by demonstrating that they had already put in place appropriate health and safety measures.
Now, for some facts to know.
- Employees may not have to be tested for COVID-19 to qualify for the benefits. A worker can qualify by either showing a positive lab test; or if a test was not available for the worker, a diagnosis based on symptoms by a licensed physician/licensed physician’s assistant/licensed advanced practice registered nurse. The insurer or employer must be provided a copy of the diagnosis by one of the listed healthcare providers or a copy of the lab test results.
- An employee who has contracted COVID-19 but does not fall into one of the occupations generally covered under presumption laws, can still apply for workers’ compensation benefits if they believe that their illness is due to their employment. It is important that the worker notifies the employer at the earliest. They may also contact the Department of Labor and Industry for any assistance.
- An employer can “rebut” the presumption only if they can prove that the worker’s employment was not the direct cause of COVID-19. In other words, the burden of proof falls on the employer who must establish that the employee was not exposed to the virus while performing his or her job duties, or that the exposure to the virus could not have been a cause for the employee’s illness.
- If an employee develops symptoms they think could be COVID-19, he/she must immediately notify their employer because there are time limitations for reporting the injury or illness. The employee must also maintain a record of when she developed the symptoms and when the employer was notified.
He/she must obtain medical care from one of the listed healthcare providers, and request for a COVID-19 test. If a test is not available, the worker should request the healthcare provider to document that a test was not available, and further document their symptoms and also provide a diagnosis of whether they believe the worker has COVID-19. A copy of the test results or the diagnosis must be given to the employer/insurer.
- The employer must file a first report of the employee’s illness or injury with the workers’ compensation insurer or claim administrator. The insurer or claim administrator must inform the worker in writing within 14 days whether the claim is accepted or not. In case the employer doesn’t file an injury report with the insurer or claim administrator, the employee can call the Department of Labor and Industry for assistance.
Many COVID-19 workers’ compensation presumption laws are about to expire, and many states are considering permanent infectious disease presumptions. This could impact the way the workers’ compensation industry considers and reimburses occupational injuries and illnesses. As a medical chart review company assisting workers’ compensation attorneys, we understand that most of the presumptions may be rebuttable or the claim could be denied if the employer can prove that the worker contracted the illness somewhere else.
Moreover, some presumptions would apply only to worker categories that are at higher risk of contracting an infectious disease (health workers and first responders); and most of these regulations would become effective only if there is a pandemic or a state of emergency. Employees filing a workers’ compensation claim for COVID-19 need to provide a complete set of their medical records that carry the proof of their ailments. Just as in other injury/illness cases, medical record review and evidence extraction become crucial in such cases as well.