As 2020 comes to a close, the coronavirus global pandemic is still ongoing while hopes of an effective vaccine appear to be at our doorstep. We’ve made it through various phases of shut-downs and re-openings. Needless to say, whenever the reopening of your business occurs, business leaders need to plan for the nuances in workers’ compensation laws in the event that an employee becomes ill as a result of COVID-19.
Why? Because many states updated or attempted to update their laws to include COVID-19 as a work-related condition depending on the nature of your business. Though mostly focused on front line and healthcare workers, some states have included others at “elevated risk” for compensability presumptions under their legal framework.
All of this leads to uncertainty on behalf of both employees and employers, due in part to traceability, laws regarding comparable diseases (i.e. the flu isn’t considered an occupational illness), and the requirement to demonstrate a higher risk of exposure compared to others in the community.
Today, we’re looking at the different approaches to workers’ compensation taken by Northeastern states, and exploring considerations that employers need to make when they reopen.
How Has COVID Affected Workers’ Compensation Laws in the Northeast?
With each state having vastly diverse workers’ compensation laws, the amendments are just as diverse. Across many of Acadia’s core states, different laws and regulations have been enacted that modify instances when employees may be able to claim workers’ compensation benefits. Stipulations vary on the timing and role of the worker (many affect first responders), but interested parties can view some examples below, recognizing further revisions may occur.
For those interested in a simple table or to view states outside of our service area, click here to view the NCCI resource, State Activity: COVID-19 WC Compensability Presumptions 1. Information below is current as of December 1, 2020.
Title: Executive Order No. 7JJJ Protection of Public Health and Safety During COVID-19 Pandemic and Response—Rebuttable Presumption Regarding Workers Compensation Benefits Related to Contraction of COVID-19 (Issued 24 July 2020, Full Text)
Workers’ compensation statutes have not been amended by the State Legislature, Bureau of Insurance, or the Governor’s Office.
Two bills have been introduced and referred to committees. Neither bill was acted upon in the 2020 legislative session and any bill of this nature will need to be re-submitted for consideration in the 2021 legislative session.
- HB 47392 Creates a Presumption of Relatedness for Essential Workers Suffering From COVID-19
- HB 47493 Provides Worker Compensation Benefits to Certain Emergency Response and Medical Personnel Related to COVID-19 Infection
New Hampshire businesses are bound by Emergency Order #364. Pursuant to Executive Order 2020-04, this was amended on June 17, 2020 by Governor Sununu in Emergency Order #535 and affects first responders.
Several bills have been introduced in the State Senate and Assembly that would create a presumption of compensability for COVID-19 exposure in the workplace for first responders, healthcare workers, and essential workers. It remains to be seen whether the legislature will pass any of the following:
- AB 103916 Relates to Presumption Regarding Impairment of Health Caused by COVID-19 and in Relation to Sick Leave; Amends the Workers’ Compensation Law, in Relation to Workers’ Compensation Coverage and Benefits for Employees Who Participated in Essential Services During the COVID-19 Outbreak
- SB 82667 Amends the Workers’ Compensation Law, in Relation to Including Exposure to Novel Coronavirus, COVID-19 as an Occupational Disease
Neither of these bills were passed in the 2020 legislative session and any bills of a similar nature will need to be re-submitted for consideration in the 2021 legislative session.
Governor Scott signed into law S.342. This law creates a presumption that workers’ with elevated risk for exposure, i.e., first responders, corrections officers, and healthcare professionals, among others, who test positive for COVID-19 between March 1, 2020, and January 15, 2021, shall be “presumed to be compensable.” The presumption can be rebutted if the preponderance of the evidence shows that COVID-19 exposure was caused by non-employment connected risk factors.
The Complicated Nature of Workers’ Compensation and COVID-19
As you can see from the above-mentioned laws, bills, and frameworks, each state has its own approach as to COVID and workers’ compensation. As states apply varying compensability requirements and standards based on industry, occupation, and the size and structure of a business, an employer’s exposure in Vermont may well differ from that in New Hampshire, and it pays to understand how you may be impacted if an employee does contract COVID-19.
The Grey Area between Community Spread Illness and COVID-19
According to the National Conference on State Legislators (NCSL), there remains a lot of grey area in spite of the above-mentioned legal and regulatory framework.
On the one hand, reduced risk of death or disability may push this into community-spread illness territory. On the other, continued designation of “pandemic” may create new classes of workers considered high-risk. According to the NCSL8,
“Generally, workers’ compensation does not cover common community-spread illnesses like a cold or the flu because they usually cannot be directly tied to the workplace. Some states have made exceptions for certain workers who develop chronic illnesses, like cancer, resulting from repeated exposure to harmful materials and environments. […]
The COVID-19 pandemic presents a unique circumstance where the many jobs that are not typically considered hazardous have suddenly become very dangerous for the workers. Workers deemed essential including health care workers, mass transit operators and grocery store workers are at a high risk of exposure to the virus while at work.
But the more hazardous working conditions do not guarantee that a COVID-19 infection would be covered under workers’ compensation in most states.”
This appears to be something taken into consideration by the diverse state legislatures across the nation.
The Importance of Developing Return to Work Policies to Protect Workers
Whenever the return occurs, it is important to put policies and procedures in place that protect your employees. From updates in scheduling, to changes in safety plans and handbook updates, communication is critical, and your employees should feel confident that your business has taken safety precautions to protect their health and well-being.
The first step in establishing this is to develop a health and safety plan that outlines all of the policies that you have set, or are required to implement by the State, and make sure that you, your employees, and your customers practice these policies daily.
A workplace policy may still leave you exposed in some states—especially those whose burden of proof in a workers’ compensation case is simply “all workers who test positive for COVID-19 and who are not exclusively working from home” or “employees of pharmacies or grocery stores.” Regardless, taking steps to protect your employees is critical to managing workers’ compensation and other exposures.
Additional Questions to Consider
Whether you’ve reopened, changed worker roles, or have made other changes, understanding the nuances of workers’ compensation laws during COVID will assist as you seek to protect your employees and limit business risks.
Get to know answers to common questions from the National Council on Compensation Insurance 9 and learn more about what you should know about rate filing season 2020-21 here10.
Protect Workers, Protect Yourself: Workers’ Compensation Insurance from Acadia
Employee injuries can have a significant impact on your bottom line11. Not only do you lose productivity and incur expenses to try to overcome that lost worker, you can also see long term expense increases in your workers’ compensation insurance premiums, if your workers’ compensation claims are not properly managed.
Acadia’s goal is to help facilitate a favorable medical outcome and timely return to work for your injured employee, so that the impact on your business is minimized. As your Trusted Advisors, our job is to proactively manage the workers’ compensation claim to help ensure that an injured worker receives the most appropriate care available, and to return your worker to gainful employment, as soon as possible.
Acadia Insurance is pleased to share this material with its customers. Please note, however, that nothing in this document should be construed as legal advice or the provision of professional consulting services. This material is for general informational purposes only, and while reasonable care has been utilized in compiling this information, no warranty or representation is made as to accuracy or completeness.