With COVID-19 continuing to spread throughout the United States, we have been receiving questions from our clients on potential workers’ compensation liability. Our alert from March 12, 2020 highlighted COVID-19 in the workplace and common issues on the workers’ compensation front that employers may face. However, our attorneys at Wiedner & McAuliffe, Ltd. wanted to provide a follow-up, and address some of the common questions we have received in relation to COVID-19.
Is COVID-19 a Compensable Workers’ Compensation Claim?
One common question concerns whether an employee that contracts COVID-19 may have a workers’ compensation claim if contracted in the workplace. The short answer is, “it depends.” In Illinois, and in most states, the question of compensability will likely fall under each state’s respective occupational diseases act or supplement to their workers’ compensation statute. Under the OD Act in Illinois, an “ordinary disease of life” comes within the definition of an “occupational disease” as long as it is caused or aggravated by an employment-related risk, and it must “arise out of and in the course of the employment.” The employee would need to prove that he or she contracted the virus from the employment and not the general public, which could in theory be more difficult as the virus spreads throughout the general population; in other words, arguably we are all at an equal risk for contracting the virus. In contrast, high-risk employees (i.e. healthcare workers, first responders, transportation industry workers, etc.), may have an easier path towards proving compensability. Therefore, absent strong evidence, or if the employee is not categorized as “high-risk,” denial may be proper in most instances.
Do We Owe TTD to an Employee not at MMI, Working Modified Duty, and Our 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 he or she : (1) refuses to submit to medical, surgical, or hospital treatment essential to his recovery; (2) refuses to cooperate in good faith with rehabilitation efforts; or (3) refuses work falling within the physical restrictions prescribed by his doctor. Interstate Scaffolding v. IWCC, 236 Ill.2d 132 (2010). While TTD benefits may be awarded if the employee is not at MMI and off work because a company layoff, plant lockout, or shutdown, those scenarios result from management/labor relations or economic forces. With COVID-19 however, the off work status is 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 effected employers. In that manner, the injured employee would be in the position as other out of work co-employees and receiving a replacement for lost wages. Indeed, the Federal Government’s COVID19 stimulus package envisions an additional $600.00 a week in unemployment compensation available over the next four months.
Do We Owe TTD to an Employee Working Modified Duty, Who Elects to Stay Home While Our Workplace Stays Open?
In this scenario, since work is available within the employee’s work restrictions, the suspension of TTD is be proper due to the employee’s refusal to work per the Interstate Scaffolding case.
Do we owe TTD if an employee is working modified duty, is at MMI, and our workplace closes?
Scenarios where the employee is at MMI when working modified duty, and the employer suspends operations laying off the entire work force per government directive will not result in liability for TTD benefits as the employee is at MMI. However, other potential liability may exist, such as vocational retraining and maintenance.
Do We Owe TTD if Our TTE Provider Closes?
In the case of temporary transitional employment where the TTE provider closes, an award of TTD is likely, as the claimant is not working at the employer’s original place of business, nor is he or she at MMI.
Do We 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 will likely need to continue. However, we would recommend remaining diligent, and confirming that the reason for the delay in either medical treatment and/or an IME is due to a delay imposed by the provider. If the reason for the delay is not due to the provider, and no other reasonable reason for delay is provided, suspension of TTD may be considered.
What can We do to Mitigate Workers’ Compensation Claims?
Aside from the possible precautions we listed in our alert on March 12, 2020 (i.e. restricting travel and remote access when possible), there are other precautions that can be taken. For those businesses deemed “essential functions” by the various executive orders imposed by governors across the nation that remain in operation, there are still measures that can be taken to ideally reduce the risk of possible COVID-19 exposure in the workplace. These measures include notifying employees of six-foot distances between employees as well as customers, providing hand sanitizer and sanitizing products to employees and customers while on the employer’s premises, separate operating hours for vulnerable to include the elderly and immunocompromised customers, and online and remote access.
COVID-19 is an ever-evolving situation, and we will be here to continue to provide updates. In addition to Illinois, our team is ready to discuss similar advocacy based positions pertaining to any claims you have in Missouri, Indiana, Iowa, Kansas, Nebraska, and Wisconsin. If you have any questions on the impact of COVID-19 on your business, and possible precautions you can take from a legal standpoint, please contact us at Wiedner and McAuliffe by email or phone at 312-855-1105, or visit our website at www.wmlaw.com.
One North Franklin
13200 Metcalf Ave.
Overland Park, KS
11 North Third St.
1111 South Alpine Road
101 S. Hanley
St. Louis, MO