The swift economic upheaval and health impact of the COVID-19 outbreak in the United States and around the world is unprecedented in the last century. President Trump proclaimed the COVID-19 outbreak in the United States to be a national emergency that began March 1, 2020.
Since the onset of the COVID-19 crisis, recurring questions have arisen as to the potential workers’ compensation liability for employees who allege that they contracted the virus in the workplace. Are employees who claim they contracted the coronavirus in the workplace entitled to workers’ compensation? Traditional rules governing whether such a claim will be honored as a work-related injury have already been bent and stretched (but not entirely broken) recently in favor of increased compensation.
In addition, are employees who claim they are injured while working from home entitled to workers’ compensation? Since the declaration of a national emergency, businesses have increasingly closed or, where technologically possible, turned to telecommuting to maintain on-going business operations. While telecomputing permits the creation of a new workspace, it has also increased the risk to employers of “workplace” injuries occurring in a working environment that is not controlled by the employer.
In this changing environment, employers should be aware that many “traditional” workers’ compensation rules will change. Employers should be prepared for increased claims and increased workers’ compensation insurance premiums caused by the COVID-19 crisis.
Is COVID-19 Related Illness or Death A Compensable Injury Under Workers’ Compensation?
In general, while each state law varies, in order for an injury to be compensable under workers’ compensation, the injury must both “arise out of” and occur “in the course of” employment.
The phrase “in the course of” refers to the time, place, and circumstances of the injury, and “arising out of” refers to its cause or origin. Thus, an accidental injury arises out of and is in the course of employment if it has a rational connection to the employment and occurs while the employee is doing the work she was employed to perform.
On March 10, 2020, the Occupational Safety and Health Administration declared that coronavirus was a recordable injury—meaning that an employer has to notify the federal safety agency when a worker catches the disease at work—and issued guidance to that effect.
The National Council on Compensation Insurance (NCCI) the national rating organization for worker compensation, has advised that whether workers’ compensation benefits for COVID-19 illness or death should be paid remains undetermined. At the present time, such benefits, if available, appear to be limited to healthcare workers and first responders. On March 26, 2020, NCCI issued guidance on the issue of compensability for such claims as follows:
Is COVID-19 compensable under state workers’ compensation acts?
The answer to that question is “maybe.” While workers’ compensation laws provide compensation for “occupational diseases” that arise out of and in the course of employment, many state statutes exclude “ordinary diseases of life” (e.g., the common cold or flu). There are occupational groups that arguably would have a higher probability of exposure such as healthcare workers. However, even in those cases, there may be uncertainty as to whether the disease is compensable.
As of now, some states have pending legislative initiatives to expand the coverage for certain workers. Other state legislatures are currently meeting and discussing these issues and it is expected that these states may introduce similar initiatives relative to workers’ compensation.
At least two states (Washington and Kentucky) have indicated that workers’ compensation benefits may be available to healthcare workers and first responders who contract the coronavirus during the course of their employment. On March 5, Washington’s Department of Labor and Industries announced that it changed its policy related to workers’ compensation coverage for healthcare workers and first responders. Washington state will provide benefits to these workers during the time that they are quarantined after being exposed to coronavirus on the job. The 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.
Kentucky Employers Mutual Insurance Co., the largest workers’ compensation insurer in Kentucky, announced on March 13, 2020 that it will pay wage-replacement benefits for any first responder or employee in the medical field who is quarantined because of direct exposure to a person diagnosed with COVID-19.
Benefits, however, may expand. Other groups have already advocated that grocery store workers and delivery drivers should be eligible for similar workers’ compensation benefits, since their employers deem them essential workers and they, too, may be at higher risk of COVID-19 exposure based on their persistent contact with the public as the pandemic rages across the country.
Are Injuries Suffered by Telecommuters Covered for Workers’ Compensation?
As a result of the COVID-19 crisis, telecommuting has increased. Employers may also anticipate an increase in worker compensation claims due to workers who telecommute and are injured in there designated workspace at home.
What is Telecommuting?
An employee telecommutes when he or she takes advantage of electronic mail, internet, facsimile machines and other technological advancements to work from home or a place other than the traditional worksite. See Brianne M. Sullenger, Comment, Telecommuting: A Reasonable Accommodation Under the Americans With Disabilities Act As Technology Advances, 19 Regent U.L.Rev. 537, 544 (2006–2007) (“Sullenger”). Employment laws touching on the American Disability Act, Wage and Hour compliance and OSHA, as well as a variety of laws, are implicated by a telecommuting workforce.
Workers’ compensation laws nationwide began adapting to telecommuting more than a decade ago. Courts will likely lean on previously developed laws to determine the compensability of claims in the future due to the COVID-19 crisis.
Telecommuting Was Already a Growing Trend Before the Current Covid-19 Crisis
Before COVID-19 (B.C.), telecommuting was already a growing trend in the labor and employment market. We access the data through IPUMS USA, a data set from the University of Minnesota that provides easily accessible, well-documented data on individual responses to the decennial census and ACS. According to the census data, about 500,000 full-time employees primarily worked from home in 1980, accounting for 0.7% of the workforce. The Census Bureau’s American Community Survey (ACS), annually asks respondents how they usually commute to work. By 2017, the number of telecommuters had increased to 3.4 million employees or approximately 3% of the national workforce. We exclude self-employed workers from our analysis. This number omits work performed at nonresidential settings, such as coffee shops or coworking spaces, and thus likely underestimated the actual number of employees who worked outside the traditional workplace. Working in these nonresidential settings is covered by the Telework Enhancement Act (2010), which defines telework as a “work flexibility arrangement under which an employee performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.” However, the available data on the U.S. labor force focus on only people who work from home. The share of employees who worked from home just a few days per month was estimated to be significantly higher than the share of people who primarily telecommuted in 2017.
In 2012, Gallup Poll data showed 39% of employees worked remotely in some capacity. Similar data from 2016 showed that 43% of the workforce worked at home at least some of the time. The independent Eno Center for Transportation reported that in 2017 more Americans worked from home than commuted via mass transit. In 2018, almost a quarter of the U.S. workforce (23.7%) was estimated by one source to work at least some hours from home on an average day.
Claims After COVID-19
The increase of telecommuting caused by the COVID-19 crisis will likely increase the incidence of work-related injuries “in the home.” Such claims will likely be analyzed according to more traditional methods in dealing with workers’ compensation claims.
Employers should have an established written policy concerning its telecommuting policy. Those items which should be addressed in the policy include the following:
- The employee should affirm that the employee’s workspace is a dedicated workspace that is free of safety hazards and allows, if necessary, a periodic inspection by the employer;
- The employee should affirm their understanding and acceptance of the workers’ compensation policy of the employer concerning prompt notification of the employer of any alleged injury; and
- The employer should establish work hours that permit and require designated periods of work—the latter will allow the employer to determine if an injury occurred during the scope and course of employment.