COVID-19 in the Workplace: Health, Safety, and Insurance Considerations

People and organizations with US operations and exposures are feeling the effects of the COVID-19 pandemic and responding accordingly. Many businesses are already implementing policies to minimize the potential spread of the virus and protect their employees — which, during a public health emergency, should be their top priority. But employers must also review their workers’ compensation insurance policies and prepare to file claims in the event that their employees acquire COVID-19.

Protecting Employees’ Health

While COVID-19 is a health crisis that must be managed principally by medical experts, employers have a crucial role to play in keeping workplaces safe and communicating with employees.

Employers should focus on helping to slow the virus’s spread. Among other actions, employers may wish to encourage employees to stay at home if they’re feeling ill or if a family member is sick. They may also consider allowing employees to work from home more frequently.

As the outbreak continues, communication will be key. Relying on guidance from reputable sources, such as the World Health Organization and the Centers for Disease Control and Prevention, employers should reinforce recommendations aimed at promoting good hygiene, including encouraging employees to:

• Frequently wash their hands with soap and water or use alcohol-based hand sanitizers to kill any viruses.
• Use the inside of a flexed elbow or a tissue — which should be disposed of immediately — when coughing or sneezing.
• Avoid touching their eyes, nose, and mouth.
• Keep a distance of at least three feet from anyone who is coughing or sneezing.
• Be vaccinated against the flu in order to minimize confusion of symptoms.

Before any employee tests positive for COVID-19, it’s imperative that employers have plans in place, so they can take immediate action if necessary. Among other elements, these plans should contemplate potential response actions in the event of a confirmed case, including whether to send other employees home and/or ask them to self-quarantine, whether to encourage other employees to seek medical care, and how to disinfect the workplace.

Determining Compensability

Many employers may now be asking an important question: If one of our employees contracts COVID-19, will they be entitled to workers’ compensation benefits?

The answer can be complicated.

Although workers’ compensation statutes and case law can vary by state, compensability generally requires that an illness or disease be “occupational.” This essentially means that the illness:

• Arises out of and occurs in the course and scope of employment, which will normally come down to whether an employee was benefitting the employer when exposed.
• Is proven to be the result of a workplace exposure.
• Is “peculiar” to the employee’s work, meaning that the disease is found exclusively among or presents greater risk for certain employees. In the case of COVID-19, first responders and workers in the health care,aviation and transportation, and hospitality industries are among those with a higher likelihood of exposure.

As COVID-19 continues to spread, it could become increasingly difficult to determine whether an employee has contracted the illness in the workplace. Health care workers, for example, who are infected through contact with patients could expose not only their coworkers, but their families, neighbors, and strangers, too.

Whether a specific case is compensable will be determined by the facts established during an investigation of the claim, as well as the governing law in the jurisdiction where the claim is reported. And because there is no single “test” that can prove whether an illness or disease is compensable, it may ultimately come down to a decision by a court or state workers’ compensation board.

Claims Preparation

Employers should begin preparing for potential workers’ compensation claim filings related to COVID-19. Employers should establish strategic, multi-stakeholder investigation teams that bring together representatives from risk management, claims handling, workplace safety, defense counsel, and other pertinent groups. These teams should establish processes to quickly identify claims, which are likely to be complex and could be costly, and route them to qualified senior adjustors who are capable of determining compensability and working collaboratively with investigative teams.

If an employee files a workers’ compensation claim related to the current outbreak, an employer should:

• Ask for the results of a COVID-19 test. If this is negative, the workers’ compensation claim will be denied and the employee will not receive any benefits.
• Report the potential claim to third-party administrators and/or insurers, and discuss the positive results of the COVID-19 test.
• Disclose all protective measures being taken to prevent the spread of the virus.
• Have legal and claims experts carry out a timely initial investigation and present the results to risk management teams.

In addition to these specific steps, employers should encourage regular communication among team members and discuss with them any claims under active investigation and relevant updates from health authorities.

Other Employee Claims

In jurisdictions — such as Texas — where employees may not be protected by workers’ compensation systems, similar considerations apply. Employers in these jurisdictions should assemble multi-stakeholder teams, encourage regular communication, and carefully evaluate potential claims, but these actions should support the investigation and defense of liability claims seeking damages. The investigation and direction of such a claim should involve legal counsel, in accordance with an employer’s standard liability claims protocols.