As most U.S. states get back to work, workers as well as employers have many questions regarding COVID-19 infection and its impact on workers’ compensation as well as the protocols to follow at the workplace. States are implementing workplace safety guidelines to minimize the risk of exposure to the virus. However, if employees contract the virus at the workplace, they can file a claim which would entail medical claims review and other processes to determine eligibility. Since employers are requiring that workers get vaccinated against COVID-19 or submit to regular COVID-19 testing, questions arise as to who pays for the testing if workers refuse to get vaccinated. Given the high transmission nature of the delta variant of the virus, many employers including the federal government and some state governments, and some large organizations have revised their safety policies related to COVID-19. Federal employees are required to be vaccinated or submit to weekly or twice-weekly COVID-19 testing as well as other workplace safety requirements. Similar mandates have been issued in California and other states and cities that healthcare workers and state employees need to follow.
Here are some COVID-19 related workers’ compensation FAQs to know.
- Is COVID-19 Covered by Workers’ Compensation?
Workers’ compensation claims and processes are based on state laws that vary from state to state. Therefore, employers should ideally consult with their workers’ compensation attorney regarding this. Generally, workers’ compensation laws require a worker to prove that he/she contracted the illness in the course and scope of employment, and that the illness was caused by a hazard recognized as specific to a specific employment. In some states, contagious diseases caused by exposure to co-workers or from a hazard to which the sick employee may have been equally exposed outside of his or her employment, are excluded from coverage. Jobs that entail a higher risk of exposure such as healthcare workers and first responders are more likely to receive coverage for COVID-19 workers’ compensation claims.
- Does an Employee Need a Positive COVID-19 Test to be Eligible for Workers’ Compensation?
The employee must have a COVID-19 diagnosis from a doctor but may not necessarily need to have a positive test (https://barkanmeizlish.com/).
- Can An Employer Screen Employees by Taking their Temperature or Asking them Disability-related Questions before Allowing them Access to the Workplace?
They can do so. Based on the current COVID-19 pandemic as evaluated by the U.S. Centers for Disease Control & Prevention (CDC) and other public health authorities, an employer can take an employee’s body temperature as a screening method during the pandemic. If the employee refuses to permit the employer to do this, the ADA, under the current pandemic circumstances, allows the employer to prohibit the worker’s physical presence in the workplace. However, the EEOC (Equal Employment Opportunity Commission) cautions employers that not all persons with COVID-19 may present with a fever. Also, the body temperature information collected should be considered medical information that is subject to ADA confidentiality requirements. (https://ogletree.com/)
- Are Vaccination and COVID-19 Testing Policies Allowed under Federal Anti-discrimination Laws?
They are permissible, as long as they are fairly applied and allow for reasonable accommodations (shrm.org).
- Is An Employee Quarantined due to COVID-19 Eligible for Workers’ Compensation Benefits?
An employee who was quarantined but didn’t have a positive COVID-19 diagnosis or test may not be eligible for workers’ compensation benefits. However, he/she may be eligible for state or federal unemployment benefits because state and federal unemployment benefits were expanded as a response to the coronavirus epidemic (https://barkanmeizlish.com/).
- Can An Employee Refuse to Come to Work following a Fear of Exposure to the Virus?
Theoretically, yes. OSHA (Occupational Safety and Health Act), in certain circumstances, may protect the employee from retaliation when they refuse to perform work as directed. However, a general fear of contracting COVID-19 may not justify a work refusal in most cases. Even if the employee’s refusal is considered justified, OSHA does not require that the employee be paid for the time he or she is not at work due to his/her refusal.
- Is Free Testing Available for COVID-19?
According to hhs.gov, COVID-19 tests are available free of cost nationwide at health centers and select pharmacies. The Families First Coronavirus Response Act ensures free COVID-19 testing to anyone in the United States, including the uninsured. Local healthcare providers or state/local public health departments can provide more information regarding any additional testing sites that are available.
- If Free Testing isn’t Feasible for an Employee, or If Regular Employment-related Testing Isn’t Covered, do Employers have to Pay for COVID-19 Testing?
- Employers will have to review the relevant federal, state and local employment to determine if they have to pay for the testing.
- The EEOC does not specifically address the cost of COVID-19 tests. However, employers may be required to pay for COVID-19 testing under the guidance of the agency. Under the ADA (Americans with Disabilities Act), an employer can have a workplace policy which includes a requirement that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” According to the EEOC, the COVID-19 pandemic qualifies as a direct threat. In an earlier guidance that was issued before the pandemic, the EEOC said “If an employer requires an employee to go to a health care professional of the employer’s choice, the employer must pay all costs associated with the visit(s)."
- Employers must also check all relevant state laws when developing their COVID-19 testing policies. Many states have statutes issued prior to the pandemic, which require employers to pay for mandatory medical tests or reimburse such tests.
- California requires employers to reimburse workers for all necessary business-related expenses. The California Department of Industrial Relations mandates that “If the employer requires an employee to obtain a COVID-19 test or vaccination … then the employer must pay for the time it takes for the testing or vaccination, including travel time."
- Does an Employer have to File a First Report of Injury if an Employee has an Adverse Reaction to a COVID-19 Vaccine?
Yes, if an employer knows or gets knowledge either from the employee or from the circumstances that a COVID-19 vaccination that relates to the employee’s job causes the employee to miss one or more days of work, a First Report of Injury must be filed with the Board. (Maine Workers’ Compensation Board)
- If an Employee has an Exposure to COVID-19 and is Medically Removed from Work, is He or She Eligible for Temporary Disability Benefits?
Temporary disability benefits may not be payable since there is no injury involved, and an exposure to the virus is not considered an injury. (epicbrokers.com)
- Is The Time Employees Spend Undergoing COVID-19 Testing Compensable?
The federal Fair Labor Standards Act requires employers to pay nonexempt employees for the time they spend undergoing testing during the workday. If the employer asks employees to take the test on their own time before entering the workplace, in addition to any state law requirements, employers may still be required to pay for the time under federal law, according to the U.S. Department of Labor. Employers are required to pay their workers for all hours worked and COVID-19 testing time may be compensable since the testing is vital for them to carry out their jobs safely and efficiently during the pandemic.
- Is An Employee Entitled to Short-term Disability Coverage If He or She is Unable to Work Following a Voluntary or Mandatory Quarantine, Without a COVID-19 Diagnosis or a Positive COVID-19 Test?
This would depend on the definition of “disability” according to the employer’s short-term disability policy. Some employers have waived the mandatory waiting period/elimination period, while some others have increased the disability benefits coverage in the current context.
- Can An Employer Encourage Workers to Telework as a Strategy to Control the COVID-19 Infection?
Yes, employers can do that since the EEOC has stated that telework is an effective infection control strategy. Moreover, the EEOC has also pointed out that workers with disabilities that put them at high risk for complications related to COVID-19 may request telework as a reasonable accommodation under the ADA so that their chances of infection are minimized.
- Is COVID-19 Considered a Disability Under the ADA?
Normally it isn’t considered a disability under the ADA. However, complications from the virus such as pneumonia could qualify as an ADA disability, which would require the employer to fulfil certain obligations such as reasonable accommodation. Employers need to review applicable state mini-ADAs to make sure they do not contain different/additional requirements or provisions. (https://ogletree.com/).
COVID-19 related workers’ compensation benefits are granted to eligible employees based on a comprehensive medical record review and other formal procedures. The claim must be well prepared, and all documentation of the injury, medical bills and other necessary records must be made available. As a medical review company assisting workers’ compensation attorneys, we take care of the entire medical record analysis and make sure that all the required medical information is available for the attorney.
Disclaimer: The information provided in this blog is not professional legal advice and is for informational purposes only. Employers and employees must consult their workers’ compensation attorney or insurer for professional advice in this regard.