COVID-19, also known as Coronavirus, was recently designated a global health emergency and pandemic. The questions are what duties an employer might have to its employees in relation to the spread of COVID-19 and whether an employee that contracts COVID-19 might have a viable workers’ compensation claim.
Although an employer cannot outright ban personal travel of its employees, employers nevertheless should consider restricting non-essential work related travel including conferences and in-person meetings with large groups. Employers might also consider requesting employees inform the employer if they are traveling to high-risk areas. Furthermore, when an employee has traveled to a high-risk area, employers should consider instructing the employee to remain away from the workplace and to undergo a self-quarantine for fourteen (14) days. This would be to protect the health and safety not only of the individual employee but the entire work force.
WORKERS’ COMPENSATION FAQs
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 workers’ compensation claim if the employee proves they contracted it in the workplace. The short answer is, “it depends.”
In Missouri, an occupational disease need not have been foreseen or expected but after its contraction, it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence. §287.067.1 RSMo. The statute defines occupational disease as “an identifiable disease arising…out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable….” §287.067.1 RSMo.
Historically, Missouri courts find illnesses like Hepatitis, MRSA, and other viral infections can be compensable workers’ compensation occupational diseases. Typically, these viruses are found almost exclusively in hospitals and other medical care facilities. With respect to COVID-19, however, an employee would need to prove they contracted COVID-19 arising out of and in the course of the employment (§287.067.7 RSMo), that the occupational exposure was the prevailing factor in causing the medical condition and disability (§287.067.2 RSMo), and that COVID-19 is not an ordinary disease of life to which the general public is exposed to outside of employment (§287.067.1 RSMo). Proving such a claim will be more difficult as the virus spreads throughout the general population because we are all at an equal risk for contracting the virus. High-risk employees (eg. healthcare workers, first responders, transportation industry workers, etc.), though, may have an easier path to proving compensability.
It is important to remember that even if the illness is deemed compensable benefits may be quite limited (i.e. a small degree of permanency, if any, as well as lost time and medical), unless an infected employee develops symptoms beyond being sick for a short period. Therefore, absent strong evidence of solely workplace exposure or an employee categorized as “high-risk,” denial will be proper in most instances.
Do We Owe TTD to an Employee not at MMI, Working Modified Duty When 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 s/he: (1) unreasonably refuses treatment (§287.140.5 RSMo), (2) refuses light duty employment (§287.149 RSMo) (3) resigns while light duty work is available (§287.170.5), (4) is receiving unemployment benefits (§287.170.5), or (5) is terminated for post-injury misconduct (§287.170.4). 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 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. Indeed, the Federal Government’s COVID19 stimulus package envisions an additional $600.00 a week in unemployment compensation 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.
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 need to continue. 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 §287.140.5 RSMo.
What Can We Do to Mitigate Workers’ Compensation Claims?
As noted above, precautions can be taken such as restricting business travel and allowing or requiring employees to work remotely. For those businesses deemed “essential” by various government orders, there are still measures that can be taken to ideally reduce the risk of possible COVID-19 exposure in the workplace. These measures include asking employees to maintain a distance of six feet from co-workers and customers, providing hand sanitizer and sanitizing products to employees and customers, offering operating hours for vulnerable customers, and offering online and remote access to their business.
This pandemic situation and its impact on work continues to evolve. We will continue be here to meet your legal needs and will continue to provide updates. In addition to Missouri, our team is ready to discuss similar advocacy-based positions pertaining to any claims you have in Illinois, Indiana, Iowa, Kansas, Nebraska, and Wisconsin. If you have questions about the impact of COVID-19 on your business and possible precautions you can take from a legal standpoint, please contact us at Wiedner & McAuliffe by email or phone at 314-721-3400, 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