The coronavirus pandemic has raised a number of legal questions for American employees, including with respect to workers’ compensation. Workers’ compensation (“workers’ comp”) refers to the financial benefits paid out to an employee who is injured or becomes sick because of a work-related activity. If you contract COVID-19, do you qualify for benefits and what could you receive? What steps do you need to take to apply? While these questions depend on your profession and state, provided below is a brief guide that may help.
Workers’ compensation laws and the claims process vary by state. Therefore, it is important to visit your respective state workers’ compensation agency’s website. The U.S. Department of Labor (DOL) has a full list of state offices and contact information found here. Let’s review the application breakdown for New York by way of example.
First, you have to notify your employer in writing of your illness within 30 days. Then you’ll file Form Employee Claim (C-3) with the Workers’ Compensation Board (WCB). You are required to provide information about yourself, your employer, your job, and then specifically about your illness. Such questions include: “How did the illness happen?”; “What were you doing when you became ill?”; “Where did the illness happen?”
These are vital questions to your claim because generally, eligibility requires that employees prove that their injury, or in this case, illness resulted from their duties. Under New York law, an “occupational disease,” is one “arising from the nature of employment and contracted herein” (NY WCL §2(15). Other states have similar criteria. New Jersey employees must demonstrate that the “compensable occupational disease . . . ar[ose] out of and in the course of employment, which [is] due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment” (N.J.S.A. 34:15-31). In Florida, employers won’t have to pay out workers’ comp benefits unless the “disease has resulted from the nature of the employment in which the employee was engaged under such employer, was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease,” which must be proven through “medical evidence only, as demonstrated by physical examination findings and diagnostic testing” (Florida Title XXXI, Labor §440.151(1)(a))
This in and of itself can be an exacting standard. However, there has been a shift to amend these requirements to reflect the realities of COVID-19.
For instance, the Illinois Workers’ Compensation Commission issued an “Emergency Amendment” stating that for the next 150 days, first responders or front-line workers, such as police, firefighters, paramedics, EMTS, as well as essential workers, including in food production, grocery store services, and gas station operations, whose “injury, occupational disease, or period of incapacity resulted from exposure to the COVID-19 virus . . . the exposure will be rebuttably presumed to have arisen out of and in the course of the . . . employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the . . . employment” (emphasis added). In other words, these essential personnel, who are highly susceptible to COVID-19 exposure, will be given the benefit of the doubt and it is assumed they became infected because of their jobs. Therefore, these workers are allowed a more streamlined process to receive benefits.
“Due to the unprecedented and extreme exigencies created by the nature and timeline of the spread of COVID-19, going through the normal proposed rulemaking process . . . would create the potential for causing irreparable and irreversible harm to the public interest, public safety, and public welfare,” the Commission explained. “Without the passage of this emergency rule, the uncertainty associated with the prior rules may put an individual in the untenable position of balancing their need to receive a continued paycheck to support their family and making the correct decision to miss work and self-isolate and self-quarantine.”
While New York does not currently appear to have loosened the proof standard, you should review whether there are any newly enacted amendments, or proposed legislation, regarding COVID-19 in your state.
Now, in New York, you must file your claim for workers’ comp regarding an “occupational disease” either: Two years from when you were disabled or when you “knew or should have known that the disease was due to the nature of employment,” whichever is later. A Workers’ Compensation Law Judge will determine the actual date of when the illness prevented you from working.
You’ll also need to have your doctor fill-out Form C-4, an initial report, within 48 hours of your first treatment, and mail copies to your workers’ comp district office, your employer or it’s insurance company, and to you or your representative.
From there, your employer is required to notify the WCB and its insurance company, who will then send to you a written statement of your rights as well as inform you if you have to visit an in-network doctor before the process can continue. If there are no issues or the claim is not disputed by your employer, you’ll start to receive your workers’ comp payments. You’ll keep receiving these benefits every two weeks with your doctor filing reports on your condition (C-4.2) every 45 days. At the 12-week mark, the insurance company will assess rehabilitation efforts.
However, the WCB has made adjustments to certain requirements in light of the dangers of in-person meetings during the coronavirus pandemic. They have created a summary explaining these changes, such as the WCB now only conducting hearings remotely, employees being allowed flexibility in both submitting medical evidence or attending medical exams if they cannot visit their doctors, and changing the deadlines for appeals, to name a few.
What can you get? In New York, an ill employee, “who [is] totally or partially disabled and [is] unable to work for more than seven days,” is eligible to receive weekly cash benefits calculated as “2/3 x average weekly wage x % of disability,” currently capped at $934.11. While the WCB explains that “[i]f you can return to work but your injury prevents you from earning the same wages you once did, you may be entitled to a benefit that will make up two-thirds of the difference,” this ultimately might not matter in a COVID-19 diagnosis as returning to the workplace may not ultimately be permitted. Additionally, an employee will be entitled to medical treatment, potentially at the direction of the insurance company or employer. In more severe cases, social security benefits may be offered as well as death benefits (see more here).
You should review whether your state has created COVID-19-specific workers’ comp benefits. For instance, in California, employees can file workers’ comp if they were exposed to or contracted the virus and potentially receive “temporary disability (TD) payments” payable “for up to 104 weeks.” California workers may be entitled to ⅔ of their gross wages, medical care, and additional compensation in this case.
Federal Employees
Federal employees rights to workers’ comp is governed by the Federal Employees’ Compensation Act (FECA), which has now been extended to offering benefits to those who contract COVID-19 through work-related duties.
Under a similar rationale as Illinois, the DOL presumes that federal employees who are engaged in “high-risk employment,” namely those who “have in-person and close proximity interactions with the public on a frequent basis,” such as police and first responders, were exposed to and ultimately infected with coronavirus while in the performance of their jobs. Therefore, they will not be inundated with trying to prove that their coronavirus infection was caused by a workplace event.
For federal workers whose jobs do not classify as “high-risk employment,” they will be required “to provide a factual statement and any available evidence.” This includes job information as well as documented medical evidence “establishing a diagnosis of COVID-19” and whether the infection was “aggravated, accelerated, precipitated, or directly caused by [the] work-related activities.” As the DOL explains, establishing the link between the COVID-19 infection and your job might not be so simple: “Establishing causal relationship generally requires a qualified physician’s opinion, based on a reasonable degree of medical certainty, that the diagnosed condition is causally related to your employment conditions. This opinion must be based on a complete factual and medical background.” Additionally, the employer will be asked for any other information regarding the “alleged exposure.” Obviously, the employer is free to dispute the claim in these circumstances too.
Federal employees will file workers’ comp claims through Form CA-1, Notice of Traumatic Injury, and if the employer does not fight the claim, a worker is eligible for a “Continuation of Pay” for up to 45 days.
Also, a special COVID-19 Task Force was created that may help federal employees to file for workers compensation benefits. You can contact them at [email protected].
Clearly, this can be a challenging issue and we recommend first consulting with an attorney specialized in this area, especially if your employer disputes your workers’ comp claim.
[Image via Spencer Platt/Getty Images]
Follow Law&Crime:
