During the COVID-19 pandemic, keeping workers safe from infection has become one of the top priorities for employers, insurers, regulators, and workers themselves. Unfortunately, 2020 saw many large COVID-19 outbreaks among people who were working together in the same location. With the virus also being transmitted through community spread, it has been difficult to identify exactly where, when, and how infected individuals were exposed.
Thus, it has been difficult to determine which COVID-19 infections are work related, for the purposes of Occupational Safety and Health Administration (OSHA) reporting and the ability of sick workers to receive workers’ compensation benefits, if needed. Employers, regulators, and state legislatures have engaged in a complex debate over how to define infected workers’ COVID-19 illnesses in terms of compensability.
OSHA DEFINITIONS OF WORK-RELATEDNESS: HOW DOES COVID-19 FIT?
According to OSHA, “Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment.” However, a worker’s illness can be determined as not work related if one or more exceptions apply, including:
- The illness involves symptoms that surface at work, but the exposure to the illness occurs outside the work environment.
- The illness is the common cold or flu.
In order to determine workers’ compensation eligibility when it comes to COVID-19, employers and insurers need to clarify whether the virus exposure occurred at work or outside of work. Several complex questions arose during the beginning months of the pandemic:
- If a virus is already spreading widely in the community, how can it be proven the employee was exposed during work hours?
- Where does the burden of proof lie in defining “work-relatedness” for COVID-19 infections?
ASSESSING AND DETERMINING WORK-RELATED COVID-19 CASES
According to OSHA enforcement guidance that took effect on May 26, 2020, in determining whether a worker’s COVID-19 infection is work related, employers are permitted to ask the COVID-positive worker how they believe they contracted the virus. Employers are also expected to review the work environment for potential virus exposure.
“Employers, regulators, and state
legislatures have engaged in a complex
debate over how to define infected
workers’ COVID-19 compensability.”
OSHA guidance states that COVID-19 cases are “likely work-related” if any of these considerations apply, with no alternative explanation:
- Several COVID-19 cases develop among workers who work closely together.
- A worker’s COVID-19 illness is contracted soon after that person has had lengthy, close contact with a customer or co-worker with a confirmed case of COVID-19.
- A worker contracts the virus and their job duties include frequent, close exposure to the general public in a location where there is ongoing community transmission.
Thus, OSHA shifts the burden of proof to the employer to prove that COVID-19 infections were not acquired at work. According to the National Law Review, for these types of COVID-19 cases, “Without an alternative explanation regarding COVID-19 exposure, there is a rebuttable presumption that COVID-19 exposure was work-related.”
THE 2020 LANDSCAPE
As of December 2020, several states have taken action to extend workers’ compensation coverage or to create presumption policies to place the burden of proof on employers when determining work-relatedness for COVID-19 infections. For instance, Alaska, Minnesota, Utah, and Wisconsin limited coverage to healthcare workers and first responders, while California covers all workers who test positive for COVID-19 who are not exclusively working from home.
The COVID-19 regulatory environment is dynamic. Some states might adopt stricter regulations or more employer-friendly standards as the health crisis evolves. Underwriters should stay up to date on state-specific developments and be prepared to adapt to changes.