Is a Positive At-Home COVID-19 Test Acceptable for WC Claims? A State-by-State Perspective
With the increased prevalence of at-home COVID-19 test kits, a common question for employers is whether a positive at-home COVID-19 test is sufficient to establish a COVID-19 diagnosis as compensable for the purpose of a workers’ compensation claim. In this alert, we will address how multiple states consider this important question.
Legislation enacted on June 5, 2020 addressed the compensability of exposure to COVID-19 in the workplace. The law created a rebuttable presumption that an exposure occurred in the workplace and such exposure is causally connected to the employment for first responders or front-line workers. The law applies to all cases where the diagnosis of COVID-19 was on or after March 9, 2020 through June 31, 2021. In order to receive the presumption, the employee must have a diagnosis of COVID-19, and if before June 15, 2020, the diagnosis must be from a licensed medical practitioner or a positive lab test. After June 16, 2020, an employee must provide a positive laboratory test for COVID-19 or for COVID-19 antibodies.
While COVID-19 claims after June 31, 2021 do not carry the rebuttable presumption, based upon the rebuttable presumption language, an at-home test should not be considered the equivalent of a laboratory test. Rather, a positive COVID-19 diagnosis should be verified by either a lab (i.e., from a PCR test) or by a physician to qualify as a verifiable diagnosis.
Under the Indiana Workers’ Compensation Act, employers are directed to consider making a prospective decision as to whether their employees will be presumptively covered under the provisions of the Act, should they:
a) Be quarantined at the direction of the employer due to a confirmed or suspected Covid-19 exposure;
b) Receive a COVID-19 diagnosis from a physician without a test;
c) Receive a presumptive positive COVID-19 test; or
d) Receive a laboratory-confirmed COVID-19 diagnosis.
This seems to suggest that a “presumptive positive test,” could include an at home test without laboratory or physician confirmation.
In Iowa, there have been no executive orders, or legislation addressing workers’ compensation liability for COVID-19 claims. Therefore, employees will still have to meet their burden of proof that there was an injury or occupational disease that arose out of, and in the course of their employment.
For a COVID-19 test to qualify as proof of a positive COVID-19 diagnosis in Iowa, the test must be authorized by the FDA under an emergency use authorization to detect the presence of the COVID-19 virus. However, for at-home COVID-19 tests, the claimant very likely will have not met their burden of proof unless a physician or laboratory confirms the diagnosis.
Similarly, there is concern that home testing kits would not be sufficient to prove a COVID-19 diagnosis for a workers’ compensation claim rather, either a lab test (like PCR), or a physician’s diagnosis of COVID-19 should be required. Recently, the Board has found in Talavera v. Bob’s Super Saver, Inc. that a positive test at an emergency room was sufficient to prove a COVID-19 diagnosis. (Appeals Board CS-00-0450-082; AP-00-0457-217). While there is no rebuttable presumption of causation in Kansas from just a positive test, the Board found in that same case that being exposed to someone with a positive COVID-19 diagnosis, here confirmed at an emergency room, was enough to establish causation.
In Missouri, there is no specific legislative guidance on what COVID-19 test(s) qualify as acceptable for demonstrating a positive COVID-19 result. Should someone attempt to make a claim for benefits under the Act, our position remains that the employee must meet their minimum burden of proof for a workers’ compensation claim as set forth Missouri law. Given the ongoing questions surrounding the accuracy and validity of tests (e.g. at-home tests, rapid response), introduction of such evidence as proof of a positive test would be subject to expert evaluation and confirmation by a legitimate source, such as a laboratory or physician.
Nebraska recently introduced a bill that presumes that essential workers qualify for workers’ compensation if they are confirmed COVID-19 positive through a test on or after March 13, 2020, have COVID-19 listed as the cause of death on their death certificate, or is quarantined at the direction of the employer due to exposure or symptoms. What qualifies as a competent “test” was not verified. L.B. 441 names 10 categories of workers, including first responders and health care workers, who would qualify for the presumption that a positive COVID-19 diagnosis means they contracted the disease at work. No other employees qualify for this presumption. The bill has not been passed by the Nebraska legislature. We believe that, like Kansas and Iowa, for a COVID-19 test to qualify as one that can demonstrate proof of a positive COVID-19 diagnosis, for an employee to meet their burden of proof, they would need to have a COVID-19 diagnosis confirmed by a positive lab test (like a PCR test), or by a physician, unless something otherwise is accepted by the employer.
Wisconsin does not distinguish between testing options. Rather, Wisconsin law requires diagnosis from a competent practitioner and corresponding causation opinion. A positive COVID-19 test, regardless of the testing source, is a “first step.” The diagnosis must be confirmed and made by a physician (or NP/RN in some cases) after reviewing the results, and the provider then must provide a medical opinion that the employee contracted COVID-19 and it is work-related, based on a reasonable degree of medical probability. A “possibility” does not meet the degree of certainty required to establish a work-related condition. Further, employees still must establish the disease is traceable to a definite employment-related cause – dates, times, locations, and not caused by any other likely source.
While an at home test is relevant for a variety of reasons, confirming a potential diagnosis, a quarantine or other safety concerns, any policy put in place for use in workers’ compensation matters should always first be discussed with your insurance provider, broker or counsel. The current best practice, however, in the event of a positive at home test, should be confirmed either through a laboratory or a physician diagnosis, especially when a workers’ compensation claim is concerned.
If you have any questions, please contact any one of our attorneys at Wiedner & McAuliffe by email or phone at 312-855-1105.
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