April 16, 2020

COVID-19: What Kansas Employers Should Know

April 16, 2020


We have received many inquiries about potential workers’ compensation liability for illness related to the COVID-19 pandemic.  Our attorneys at Wiedner & McAuliffe, Ltd. wanted to directly address some of the most common questions.

Is COVID-19 a Compensable Workers’ Compensation Claim?

The most frequent question concerns whether an employee with COVID-19 could have a compensable workers’ compensation claim if the employee proves they contracted it in the workplace.

We are not aware of any specific cases yet in Kansas alleging contraction of COVID-19 because of exposure at work.  In general, though, we believe it will be difficult to prove a compensable claim for contraction of this virus.  We do note that the governors of some states have been instructing those states to presume that COVID-19 among first line workers resulted from work-related exposure.

Exposure to a community wide virus would not be an occupational disease in Kansas.  K.S.A. § 44-5a01 requires the following to prove an occupational disease:

The disease must appear to have had its origin in a special risk of such disease connected with the particular type of employment and to have resulted from that source as a reasonable consequence of the risk. Ordinary diseases of life and conditions to which the general public is or may be exposed to outside of the particular employment, and hazards of diseases and conditions attending employment in general, shall not be compensable as occupational diseases.

This section specifically exempts “conditions to which the general public is or may be exposed outside of the particular employment.”  That will be most cases of COVID-19.  It is highly contagious and easily transmitted. As we see on the news, the entire population is at risk of exposure, if not outright contraction.  It is not confined to certain jobs, industries, or individuals.

That said, health care workers and first responders could potentially recover for contracting COVID-19 at work.  We say this because the “nature of the employment” could be enough to show peculiar hazard to a health care worker or first responder.   There would have to be a hazard of the disease at the workplace in excess of the hazard of the disease in general.  The origin or risk of the disease would have to be connected to the particular employment.  That still may be difficult to prove with this virus for which no one has immunity and which has high infection rates with the spread being from contact, sometimes with a person not exhibiting any symptoms.

A health care worker would have to submit evidence of exposure to coronavirus at work.  There would have to be a confirmed case or cases where the person works.  Even then, it is questionable whether that exposure is sufficient since the worker would also presumably interact with other people, family, make limited trips to the store, etc.

Finally, if a worker has an underlying health condition that is worsened by COVID-19 or worse, dies as a result, our argument would be that is an aggravation of a pre-existing condition, which would not be compensable under K.S.A. 44-508.

Does an Employer Owe TTD to an Employee not at MMI, Working Modified Duty When The Workplace Closes by Government Mandate?

There is little case law addressing pandemic leading to a widespread government mandated shutdown of businesses.  However, TTD benefits may be suspended or terminated before an employee reaches MMI if s/he:

  1. unreasonably refuses treatment (§44-515 K.S.A.),
  2. refuses to attend a medical examination scheduled by the employer (§44-518 K.S.A.)
  3. refuses light duty employment (§44-510c(b)(2)(B) K.S.A.)
  4. resigns while light duty work is available (§44-510c(b)(2)(C) K.S.A.),
  5. is receiving unemployment benefits (§44-510c(b)(3)(A) K.S.A.), or
  6. is terminated for post-injury misconduct (§44-510e(2)(E)(i) K.S.A.).

While the Division might award TTD benefits when an employee is not at MMI and off work because a company layoff, plant lockout, or shutdown, those scenarios typically result from management/labor relations or economic forces.  With COVID-19, however, the off work status could be created solely by government intervention – a directive to cease economic activity by “non-essential businesses.”

Thus, we believe that an argument could be made that the government, not industry, should bear the cost of lost wages to these injured workers. This could be accomplished by allowing these injured workers, like similarly situated employees, to apply for and receive unemployment compensation uncontested by the affected employers. In that manner, the injured employee would be in the same position as other out of work co-employees and receiving a replacement for lost wages.  In fact, the Federal Government’s COVID19 stimulus package envisions an additional $600.00 a week in unemployment compensation, over regular state unemployment benefits available, over the next four months.

Temporary Disability and an Employee Working Modified Duty Who Elects to Stay Home While the Workplace Remains Open

When work is available within an employee’s restrictions, suspension of TTD is proper if employees refuse or decline to avail themselves to light duty work.  §44-510c(b)(2)(C).

Does an Employer owe TTD if an IME or Prescribed Medical Treatment is Delayed?

In most cases of delay in prescribed medical treatment or a scheduled IME due to COVID-19, TTD benefits should continue because the injured worker is not at fault for physicians declining to schedule IMEs or provide elective treatment in the current environment.  However, we would recommend confirming the reason for the delay is due to the provider and not the injured worker. If the reason for the delay is unrelated to the provider, and no other reasonable basis for delay is provided, suspension of TTD may be considered pursuant to §44-510 K.S.A.