Employers face ‘gray area’ with comp, coronavirus: Expert

Workers compensation legal experts say employers can look at past outbreaks and pandemics to try to understand the intersection of workplace injury and coronavirus, but that even history may not provide an accurate picture of what to expect if a pandemic occurs.

“We don’t have precedence on this issue because we don’t have a lot of exposures to pandemics,” said Aaron D. Goldstein, a Seattle-based partner in the labor and employment practice at Dorsey & Whitney LLP, which held a webinar Wednesday to discuss implications for employers. “Unfortunately, it leaves employers in a gray area; if this coronavirus ends up being worse than the swine flu it may not follow the same rules.”

Citing influenza exposure in the workplace, he said that generally “if you come down with the flu it is not a workers comp issue, maybe with the exception of healthcare workers.”

But those with “medium” risk exposure, such as workers whose jobs require them to work with the public, could see rules shift in their favor, Mr. Goldstein said.

Willis Towers Watson PLC addressed the issue on its website this week, stating that while health care workers could be among those with viable comp claims, “employees traveling on business into infected areas or those stationed permanently or semi-permanently in high-risk areas would be the most likely to make convincing cases.”

Mr. Goldstein warned that “so many laws start to fray in the event of a pandemic” and that “workers comp is another one of those cases” where occupational injury could extend past health care workers who are on the frontlines helping those infected with the virus.

One example is California’s Valley Fever, a fungal infection that thousands of people contracted in 2018 and 2019. The Workers’ Compensation Board of California held that “industrial causation” of the illness for a workers comp claimant “was established if the employee’s risk of contracting (the infection) from employment was medically probably or materially greater than from the general public,” according to Mr. Goldstein’s presentation.

“A person who works with the general public” might have a claim if they can prove they were exposed at work, he said.

Regarding prevention and safety, the U.S. Occupational Safety and Health Administration has set guidelines on COVID-19, the scientific name for the virus, referring to its general duty clause, which requires employers to provide a safe workplace for workers, and a separate guideline that calls for personal protective equipment in the event of respiratory exposure.

Mr. Goldstein said employers could limit exposure and problems by allowing workers to work from home or not fully staffing sites.

Citing federal labor law, the law firm Fisher Phillips LLP on Tuesday posted in an online alert that an employee could refuse to go to work if they feel they are in “imminent danger,” but that “the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time.”

“Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold,” the firm wrote. “Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work.”

Overall, employers should have a plan to protect workers, according to numerous legal teams tackling the issue in statements and blog posts over the past week. The firm Goldberg Segalla LLP urged employers to review illness and absence policies to ensure compliance with federal and state laws in allowing sick workers to stay home, and to “exercise prudence and vigilance, while avoiding panic and poor decision-making in addressing these concerns.”

“Decisions made in haste can lead to financial consequences and business disruption,” the firm wrote on its blog Tuesday. “These could include creating awkward situations between customers and employees, promoting hostile or offensive work environments, or the filing of discrimination lawsuits by employees or third parties against the employer.”

This article was first published by Business Insurance.

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