Brownstein Client Alert, May 22, 2020
Several jurisdictions (e.g., California, Illinois and Kentucky) have adopted—and many others (such as Colorado) are considering—a temporary presumption that COVID-19 contracted by an employee is work-related (i.e., arising out of and within the course and scope of employment) for workers’ compensation purposes. Assuming the employee meets the conditions specified in the applicable legislation, order or rule, the burden shifts to the employer to prove that the illness is not work-related. In addition, OSHA recently issued revised enforcement guidance regarding required reporting by employers of employees contracting COVID-19.
What actions should employers take in response? First, upon learning that an employee has tested positive, exhibited symptoms or been directed to self-quarantine by a health care provider, the employer should promptly seek additional information from the employee and document that data. This includes whether and when a positive test result was received (and in California, whether and when a follow-up confirmation test was done); when the employee was instructed to self-quarantine and whether and when the employee actually did so; when the employee first exhibited symptoms; and the recent dates on which, and locations to which, the employee reported to work. The employee should be asked how he or she believes the exposure occurred, and whether it is believed to be work-related (and if so, why). The employer should also explore other possible causes of exposure (e.g., household members with exposure, recent contact with a diagnosed individual, etc.). Of course, this should be done with due regard for legal limitations on medical inquiries (including under the Genetic Information Nondiscrimination Act) and confidentiality considerations.
The employer should then analyze various factors to determine whether the exposure likely is work-related. The assessment should be performed in consultation with legal counsel if the review is to be protected by the attorney-client privilege. Relevant considerations include, among other things, the employee’s interaction with the public in the performance of his or her job duties; the local community rate of infection; steps taken by the employer to prevent transmission of COVID-19 as they pertain to the affected employee; any evidence that the employee did not follow policies; whether other employees or patrons have been diagnosed with COVID-19 or exhibited symptoms; and the affected employee’s interactions with those workers or patrons (including the timing, frequency and proximity of the interactions). If the employee is deemed to be an “essential worker” (as defined in federal, state and/or local guidance), there tends to be a stronger presumption of work-relatedness. The employer also should consider factors specified under the applicable law, order or rule; for instance, California’s order sets forth specific timing considerations to take into account, specifies licensing requirements of the diagnosing health care provider, and excludes employees working from home.
Employers can then, in consultation with counsel, determine whether the incident is reportable to OSHA, and whether it is a work-related illness that properly is encompassed by workers’ compensation.
Information is changing daily and some of the content included in this alert may have changed or been updated since publication.
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This document is intended to provide you with general information regarding coronavirus-related workers' compensation presumptions. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.