June 17, 2020

States Move to Make COVID-19 Compensable

June 17: Arkansas and Illinois Join In

Arkansas Governor Asa Hutchinson signed Executive Order 20-35 establishing COVID-19 as an occupational disease and provides workers’ comp benefits to employees if within the normal course and scope of their work it is possible or likely to be exposed to the virus.

Illinois initially passed regulation changes that made COVID-19 compensable in workers’ comp, later reneging. However, Illinois Governor J.B. Pritzker signed House Bill 2455 into law, creating workers’ comp coverage of COVID-19 for first responders and healthcare workers who contracted the virus in the course of employment.

This law impacts workers who contract the virus between March 9 and December 31, 2020, but employers can rebut the presumption if they can demonstrate they followed state and federal guidelines and provided a safe workplace, or if they can prove that employees were exposed to the virus by other means.

May 10: California Issues Executive Order

California Governor Gavin Newsom signed Executive Order N-62-20, making COVID-19 a compensable occupational disease for employees who contract the virus on the job. This applies to all employees, not just those deemed essential by the state.

This order is considered retroactive to the date of California’ stay-at-home order, issued on March 19th. The order is set to expire July 5, 2020. However, the order requires workers to use COVID-19-specific sick time and other benefits before receiving workers’ comp benefits under the presumption.

California joins other states that have explicitly given certain workers’ coverage for COVID-19 infections that arise out of the occupational exposure, including:

April 29, 2020: Utah Joins List, Illinois Reneges

Utah has enacted House Bill 3007, establishing that first responders who contract COVID-19 during the course of employment shall receive workers’ comp benefits. This legislation also applies to volunteer first responders.

And while Illinois initially issued emergency rules that offered wide COVID-19 coverage, it is now reported that the Workers’ Compensation Commission has repealed these emergency rules.

While most of the country self isolates to flatten the curve of COVID-19 infections, various essential workers face infection while helping to keep the nation running.

Depending on a state’s definitions of occupational illnesses and/or diseases that may arise out of employment, coronavirus could be considered a reasonable occupational risk that warrants workers’ comp coverage. However, with a lack of clarity surrounding such language, several state governments have expanded workers’ comp coverage for COVID-19 to certain workers who may be exposed to the virus in the line of duty.

Other states that have explicitly given certain workers’ coverage for COVID-19 infections that arise out of the occupational exposure, including:

April 20, 2020: Kentucky, Missouri, and Illinois Join the List

Kentucky Governor Andy Beshear issued Executive Order 2020-277, expanding coverage to first responders, healthcare workers, grocery store workers, postal workers, childcare workers, domestic violence shelter workers, and child advocacy workers.

Missouri later issued an emergency rule, similar to Kentucky’s which also covers first responders.

In a more comprehensive approach, the Illinois Workers’ Compensation Commission issued an emergency ruling that offers coverage to first responders, healthcare workers, and other front-line workers, assuming COVID-19 arises out of the course of employment. The ruling’s definition of “front-line workers” covers several other occupations, including:

  • Workers in stores that sell groceries and medicine
  • Food, beverage, and cannabis production and agriculture
  • Organizations that provide charitable and social services
  • Gas stations and businesses needed for transportation
  • Hardware and supplies stores
  • Restaurants for consumption off-premises
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Educational institutions
  • And more

While most of the country self isolates to flatten the curve of COVID-19 infections, various essential workers face infection while helping to keep the nation running. Depending on a state’s definitions of occupational illnesses and/or diseases that may arise out of employment, coronavirus could be considered a reasonable occupational risk that warrants workers’ comp coverage. However, with a lack of clarity surrounding such language, several state governments have expanded workers’ comp coverage for COVID-19 to certain workers who may be exposed to the virus in the line of duty.

These states join others that have explicitly given certain workers’ coverage for COVID-19 infections that arise out of the occupational exposure, including:

April 9, 2020

According to a report from the National Council on Compensation Insurance (NCCI), 10 states have issued mandates to group health insurers to cover coronavirus, and this trend is spreading to key occupations in workers’ comp.

Depending on a state’s definitions of occupational illnesses and/or diseases that may arise out of employment, coronavirus could be considered a reasonable occupational risk that would warrant workers’ comp coverage. Healthcare workers, first responders, and other front-line crisis workers would likely fit these criteria.

The Washington Department of Labor announced it will provide benefits to quarantined healthcare workers and first responders. Coverage will pay for medical testing, treatment expenses if a worker becomes ill or injured, and provide indemnity payments for those who cannot work if they are sick or quarantined.

North Dakota Governor Doug Burgum issued Executive Order 2020-12 in response to the coronavirus pandemic, which expands coverage of COVID-19 to first responders and healthcare workers who are exposed to COVID-19 in the course of employment. Such workers can file a workers’ comp claim and are eligible for 14 days of wage replacement and medical coverage if quarantined. This order also applies to volunteer first responders.

Understanding when an employee infected by COVID-19 requires coverage will require an analysis of state legislation, and if compensable it will require clinical analysis and a need to monitor developments surrounding the virus.

However, as the need for essential goods becomes more apparent during this pandemic, some states may expand what is considered an emergency worker to maintain basic infrastructures. Minnesota and Vermont plan to classify grocery store employees as emergency workers.

New York specified “essential services” which must remain open, meaning workers must report for work if they are healthy and work in fields that support essential services like healthcare, insurance, banking and telecommunications, or in non-healthcare related industries such as transportation and logistics, utilities, mail and shipping services, child care and some manufacturing. This could arguably put workers into work settings at greater risk for developing COVID-19 than had they stayed in place as ordered for most of the state. In turn these individuals may be entitled to workers’ compensation benefits if they demonstrate symptoms or test positive for COVID-19.