By Joseph S. Brown, Esq.
New York State Workers' Compensation Board (WCB) recently published a fact sheet—entitled COVID-19 & Workers’ Compensation Q&A—which suggests that many COVID-19 claims are likely to be approved. The key take-aways from the fact sheet (available here) and best practices for employers are summarized in this alert.so
The WCB Fact Sheet
At the start of the COVID-19 pandemic, the general consensus among most lawyers was that the likelihood of successful Workers’ Compensation claims arising out of COVID-19 contraction was low for most employers. The WCB fact sheet acknowledges this point: “Most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment where exposure to COVID-19 was prevalent.”
The WCB fact sheet then goes on to answer the question of which work environments are more likely to result in COVID-19 claims:
Individuals who work in an environment where exposure risks are significantly higher are more likely to have compensable COVID-19 claims. Some employees are working closely with the public in locations where COVID-19 exposure is documented. This includes health care workers, first responders, transportation workers, corrections officers, and food service workers. Some workers may also have work-related claims if they directly interact with the public while working, such as retail workers.
Finally, the fact sheet provides workers with information on the benefits available, the information needed to show a COVID-19 claim is work-related, and how to file a claim.
The best defense to a COVID-19 workers’ compensation claim is an appropriate prevention strategy and a prompt and thorough investigation.
A business can limit its exposure to workers’ compensation claims by demonstrating compliance with the interim guidance issued by the New York State Department of Health available at the New York Forward website and other agencies such as the CDC and OSHA. Each re-opening business must develop a written Business Safety Plan outlining how its workplace will prevent the spread of COVID-19. The importance of a well-crafted Business Safety Plan takes on even more significance for the types of work environments that the WCB has identified as more likely to result in COVID-19 workers’ compensation claims.
As part of the Business Safety Plan, all employers must have a protocol in place to protect the workforce where an employee exhibits symptoms of COVID-19 or tests positive, has sustained a specific exposure, or has recently traveled to an area where COVID-19 is prevalent. Some of the mandated steps and best practices are as follows:
Isolate/Quarantine Confirmed Employees: The NYS Interim Guidance and CDC guidelines provide very specific protocols for how to deal with a situation where an employee has tested positive or been exposed to COVID-19. A business should have a plan in place for addressing those situations.
Contact the Local Health Department and Building Management: The NYS interim guidance requires businesses to contact the local department of health and to cooperate with contact tracing efforts. As part of that process, we recommend that a business develop a contact tracing form that it can use to document contact tracing information from an infected employee. A business is required to have daily logs of employees and visitors to the worksite to assist in the contact tracing process. A business must also ensure that in the case of an employee showing symptoms while in the workplace, the building managers are immediately notified with information on where the individual has been throughout the building and notify building management if the symptomatic employee tests positive.
Address and Isolate Employees Working Near an Infected Co-worker: In many cases, these employees will need to self-quarantine for 14 days unless the business determines the employee is critical to the safety and operations of a business and the employee’s doctor clears them to return to work in accordance with CDC guidance.
Clean and Disinfect Your Workplace: Businesses must follow NYS Department of Health and CDC guidelines for cleaning the employee’s work area and determining whether a deep cleaning of the office is required. A business must maintain daily cleaning logs.
Notify Employees and Visitors: As a best practice, businesses should have a model communication which informs others that an employee has tested positive. The notice should keep the employee’s identity confidential and reassure other employees about the steps taken to make the workplace safe.
Having all of the documentation mentioned above will be critical to any investigation and can help minimize the risk of a potential claim for workers’ compensation benefits due to COVID-19 exposure. Moreover, businesses must also consider what OSHA reporting obligations they may have for determining whether a COVID-19 illness is work-related. Under the Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), employers must make reasonable efforts, based on the available evidence, to determine whether an employee’s COVID-19 is work-related. COVID-19 workplace exposure claims will be fact-dependent and may require input from your labor and employment law attorneys.
Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com