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How employers can defend themselves against a COVID-19 claim

This year has presented unique challenges for employers that could not have been anticipated even a year ago. Among the biggest challenges are how to navigate moving the workforce to a work-at-home setting, how to safely reopen and how to effectively communicate these changes to employees.

In the midst of this, employers are concerned about how to keep their businesses thriving, how to keep their employees safe and, in the case of retail establishments or businesses that invite the public in on a regular basis, how to keep their customers safe. These are challenging times, and employers have to be forward-thinking. By thinking about the following items, they can be as prepared as possible to protect their business, their employees and their customers alike.

How to limit COVID-19's spread in the workplace

With COVID-19 infections rapidly rising and a lack of stay-home orders, it is important to have a specific daily sanitizing routine and to be consistent. Requiring employees to wear masks and to wash/disinfect hands frequently is an important part of reopening. Disinfecting all common areas and all surfaces touched in bathrooms and kitchens in the workplace is also important.

It is best to have a written schedule of disinfecting to make sure that it is completed at least once daily. Make sure that employees are distanced, even if that means rearranging desks or workspaces. The CDC has some very detailed guidance online about cleaning and disinfecting public spaces, workplaces, businesses, schools and homes.

Explaining COVID-19 claim risks for employers

A communicable disease is generally not the subject of a compensable workers’ compensation claim simply because individuals can be exposed to diseases and viruses in a wide variety of ways. Typically, health care workers or first responders are more at risk for contracting a disease or virus since their jobs may put them at greater risk than the general public. However, the widespread and pervasive nature of COVID-19 has changed this, and we are now seeing claims filed for COVID-19 contracted in a wide variety of workplaces.

COVID-19 workers’ compensation claims are being treated by the Ohio BWC as occupational disease claims, for example. To prove the allowance of an occupational disease claim, an employee must show that the condition or environment of the employment resulted in a hazard that distinguishes the employment from employment generally, and that the employment creates a risk of contracting the disease in greater degree and in a different manner from the general public.

Advice for managing a COVID-19 employee claim

If a COVID-19 claim is filed, there are certain questions an employer should ask to determine whether the employee was exposed or contracted the disease at work or elsewhere. To ensure due diligence in navigating this issue, an employer should consider the below questions:

Job duties/exposure questions:

  1. What is the person’s regular job? Are they an essential worker?
  2. How many shifts did they work and in what specific department, doing what specific job?
  3. How and when is the person alleging they were exposed to COVID-19? Is there proof that they were directly exposed to someone at work who tested positive?
  4. If the individual is a health care worker or first responder, did they work with COVID-19 patients or can they prove that they were in contact with a person or persons that tested positive for the virus?

Personal protective equipment/sanitizing:

  1. When did the company institute protocols for personal protective equipment? Were there any complaints in their department or during any of their shifts regarding a shortage of PPE? Are those complaints being documented?
  2. What PPE was provided, and is there proof the person used it? Were they required to use the PPE and was that enforced, or was it optional?
  3. What training was provided about use of PPE and personal washing? How was this enforced?
  4. What processes and procedures were in place for sanitizing and disinfecting the area where the individual worked, and what documentation is there as to when it began and how often it took place?

Symptoms/testing:

  1. What symptoms does the claimant have, and when did they start? Is there proof that they tested positive?

Personal habits/household:

  1. Has the person been out of the country at any time, or out of state when numbers were high in another state?
  2. What other activities have they engaged in or places that they have been, such as going to the store, bank, gas station, etc. and how often?
  3. Has the person been exposed to anyone in their household with a positive test or anyone in their household that was exposed to the virus?
  4. Is anyone in their household an essential worker? If so, working where and how often?
  5. What other activities have people in their household engaged in and what other places have they been?
  6. Have they been to any social gatherings, restaurants, bars or gyms, or has anyone in their household engaged in that activity?
  7. Have they had any construction or maintenance done at their household by outside contractors, workers, cleaning people, etc.?
  8. Do they have any co-morbidities?
  9. Do they have any school age children who were in the classroom during the period of alleged exposure?

Obtaining answers to these questions will help narrow down the timing of the alleged exposure and assist an employer in defending a COVID-19 claim. It is also important to look at the time period for the alleged exposure and analyze where the business and the country were at, to determine if these facts help frame the issue. Also, consider whether the area of the state where the alleged exposure occurred was a hot spot or if new reported cases were low.

These times are unprecedented, but hopefully this guidance helps you in protecting your business, employees, and community during these challenging times.

 

Beth Weeden is lead attorney at Perez & Morris, which she joined in 2018. With more than 30 years’ experience, Weeden counsels employers in all aspects of their workers’ compensation and risk management programs. She represents both self-insured and state-funded employers including national and regional retail distribution centers, retail stores, staffing services, restaurants, manufacturing facilities, home health care providers. She advises on effective risk management and defense strategies to resolve clients’ matters with the goal of reducing costs and exposure.

Weeden's practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation. She counsels clients on effective defense strategy, hearing preparation, policy coverage issues and violations of specific safety requirements.

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