COVID-19: Essential workers deserve workers’ comp

Essential workers in COVID-19 times tend to the sick, keep us fed, drive our buses, care for our elderly and more. We call them heroes. But when they fall in the line of duty, are we there for them?

Workers compensation is the system designed to take care of workers hurt or killed on the job. Employers provide insurance to cover injured workers’ medical treatment, partial payment of lost wages and death benefits; workers forfeit their right to sue their employer. It’s far from a perfect system, but it’s worked reasonably well for over a century in providing basic benefits to our injured workers.

Workers’ comp systems are administered by each state and their governing statutes vary. Essentially, compensable injuries, illnesses and deaths must be work-related. That’s an easy test to meet when a worker falls from a roof, or cuts their hand on a table saw. 

It’s trickier when it comes to illness or disease. While black lung, for example, is widely recognized as resulting from miners inhaling coal dust, the workplace origins of various cancers are often disputed. The basic concept for compensability is that the nature of the work puts the employee at higher risk of illness than the general public. In fact, many states’ comp statutes expressly exclude “ordinary diseases of life” the public is widely exposed to, like a cold or the common flu.

Enter COVID-19. While the general public has been ordered to stay home, workers in “essential” industries have been called in to the workplace. Health care workers and first responders, transit and warehouse workers, meat packers and grocery clerks. Many have gotten sick; and many have died. Did they suffer from just another “ordinary disease of life”?  Or should their illnesses and deaths be treated as work-related, and hence eligible for workers’ comp?

That question is getting a lot of traction these days and states are responding in disparate ways. In most states, essential workers aren’t given special treatment at all. If they hope to be covered by workers’ comp, it’s their burden to show they contracted the virus at work. 

In other states, new laws and orders, some enacted and some under consideration, are lightening the burdens on essential workers. A number of these expressly state that frontline health care workers and first responders who contract COVID-19 are presumptively covered by workers’ comp. But their employer or insurance carrier can contest their comp entitlement, by hunting down evidence that the illness was contracted outside of work.

Eyebrows were raised last week, when California Gov. Gavin Newsom (D) issued a more sweeping executive order. It establishes that, for a time-limited period, all essential employees working outside the home during California’s stay-at-home order, who test positive for COVID-19, are presumed to have contracted the disease in the course of employment. Here, the presumption is called “disputable.”  It’s not entirely clear what that means, but a California Chamber of Commerce bulletin notes, correctly it seems, that rebutting the presumption “seems like an extraordinarily difficult task.”

Yes, an employer or insurer tracking down all the outside-the-workplace movements and contacts of a COVID-19-positive essential worker, in search of a basis to deny their comp claim, would be arduous and expensive. In most cases it would likely prove fruitless and it would be exceptionally invasive of the employee’s privacy. So why permit it?

A state senator in Louisiana offers an alternative. Sen. Glen Womack’s (R) SB No. 475 simply states that every essential worker who is disabled (or dies) because of contracting COVID-19 is entitled to the same compensation as if the worker “received personal injury by accident arising out of and in the course of his employment.” Period. If you’re an essential worker and you get sick, disabled or die from the virus, you and your family are covered. In other words, the presumption of work-relatedness can’t be rebutted by an insurer sniffing around for contrary evidence. 

Worker advocates and unions are increasingly calling for this solution. Insurers and business groups are resisting, not surprisingly. Workers comp premiums will likely go up, and this might merit additional government assistance.  

But for many businesses, employee COVID-19 medical expenses would have been borne by employer-sponsored group health insurance or directly by self-insuring employers. And individual company experience ratings, given the unique characteristics of this pandemic, might not increase at all. 

Let’s not forget that prevention comes first. Essential workers deserve far safer workplaces. That’s priority one. But for those who have already fallen ill, and for those who will, workers’ comp is critical. We need to make sure they get it. Irrebuttably.

Michael Felsen is an Access to Justice fellow at Justice at Work in Boston. He was an attorney in the Regional Solicitor’s office with the U.S. Department of Labor, Boston Office, for 39 years. He served as regional solicitor from 2010-2018.