Today, we’re gonna be talking about the fact that many states have made laws that presume COVID-19 was contracted at work and makes you liable via workers’ comp for any contraction of COVID-19. We’re gonna talk about that and we’re gonna talk about how to fight back against that argument and what would happen if you were to have a claim. First though, please subscribe to our podcast. You can find us on iTunes, Google podcast, Spotify, Stitcher, pretty much any podcatcher of your choice. You can also subscribe to peopleprocesses.com, which will give you exclusive subscriber-only content.
Now, let’s dive into this. California Governor Gavin Newsom has signed an executive order creating what they’re calling a rebuttable presumption to receive workers’ compensation benefits, that employees who test positive for COVID-19 contracted the virus at work. Now, what that means is they have created an executive order that says, if you got COVID-19 and tested positive, there is a presumption that you contracted the virus at work. But it can be refuted or argued against given very specific requirements and we’ll go over those in a second. This is called N-62-20. Its link at peopleprocesses.com. You can click on the words it’ll go to the website, you can read the executive order. California has become the latest state in a line to expand these workers’ compensation benefits to the employees during the pandemic.
We tuned into a webinar to hear McGuireWoods which is a law firm partner Sabrina Beldner, and her colleague in the firm’s labor and employment practices explained that states such as Alaska, Arkansas, Florida, Missouri, Michigan, Minnesota, New Hampshire, North Dakota, Utah, Washington, and Wisconsin, have all enacted orders similar to California’s. That seems to be a national trend. Again, that’s Alaska, Arkansas, Florida, Missouri, Michigan, Minnesota, New Hampshire, North Dakota, Utah, Washington, Wisconsin, and now California. “Like California, other states have taken actions to expand workers’ compensation benefits to employees or create a presumption that employees contracted COVID-19 in the course of their employment to obtain workers’ compensation benefits,” says Ms. Beldner. Also, Louisiana, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Puerto Rico, and Vermont are among the jurisdictions where the efforts are pending to enact a similar presumption in favor of employees who have contracted COVID-19.
According to Beldner, the state order means that employers across the country who may want to rebut that presumption should implement considerable best practices, including:
I’m going to go through these one at a time.
- Establish a COVID-19 workplace health and safety policy that complies with OSHA and any applicable state or city health and safety mandates.
- Establish a policy that specifies the frequency with which common areas and frequently touched surfaces will be sanitized and disinfected. Many companies have increased the amount of frequency that they do these things, but they have not documented them.
- Implement workplace safety features, such as requiring frequent hand washing, face coverings when interacting with other employees or customers, and social distancing.
- Provide employees with personal protective equipment, such as masks, gloves, and hand sanitizer.
- Require daily temperature checks and reporting of symptoms.
- Prohibit any individual who demonstrates symptoms or tests positive for COVID-19 from entering the workplace.
- Required daily inquiries of employees regarding exposure to individuals who have tested positive for COVID-19, such as family members, friends, or neighbors.
- And most importantly, track and retain all the prior information (in a method that protects confidentiality) to be able to dispute any notion of workplace COVID-19 exposure by an employee.
I would add to the misspelled nurse list. The key measure is to be able to tell where people worked and when. So that in the case of someone being exposed, you need to be able to do what’s called contact tracing. So you need to know when they came into the office when they left, and approximately what they did there. You want to do things like close communal areas, like company kitchens, you want to limit the ability of deliveries to come into the building. These sorts of things will limit your exposure.
Now, these laws, these regulations, create the presumption that if someone has COVID-19 they got it working for you. And in the States, it’s going to be difficult to argue. In those areas, it’s going to be the exception to say no, no, no, my workers’ comp is not covering their COVID-19.
Well, I’m not going to get into politics. But the long and short is that they are the law of the land in these states and many more to come. These states, Utah, Arkansas, Florida, these are not necessarily democratic. They’re not necessarily republican states. This is just how the states have decided to react to make sure there’s someone to pay at the end. So, by law, you’re required to have workers’ compensation. If an employee gets COVID-19. The presumption is that they got it from work, if they didn’t, if you want to claim they didn’t, you need to have your ducks in a row, which means having the 8 previous things that we discussed, and even taking it further. As I mentioned, closing common areas. I recommend staggering if you’re going to open up and you’re in a high infection area or probably a best practice in general, you want to stagger workplaces, you want to stagger shifts if you were previously open from eight to five, or nine to five, consider opening from 7 to 3, and then other parts of your staff coming in later. Trying to keep the number of people in the office at any given time. You want to limit the number of places you open at the same time. Try it with one department, maybe one that’s best suited to working in person. You still want to maintain even as things reopen, you want to maintain all of the social distancing, all of the precautions you would take for now. It’s very important because now that the states have opened, if you choose to reopen, and you likely will, you need to make sure that you’re doing everything you can to combat a claim that an employee got COVID-19 at work.
So, on our website, peopleprocesses.com we have these items listed out in the article, please go on there, download, check it off. Some alternatives you can do will be also linking the New York State Bar Association, gave some great kind of layouts for law firms that are opening in New York. That’s much more strict than what was covered by this piece. I’ll have a link to that on the website as well. Those sorts of things are perhaps more necessary somewhere like Manhattan than the rest of the world, but also worthy of reading.
Ladies and Gentlemen, that’s it for today. Thank you so much for tuning in. Check us out on LinkedIn, Facebook, and Twitter at People Processes. Go to peopleprocesses.com, subscribe, and get some of our subscriber-only content. And if you got something out of this, make sure you share it with anyone you know. Thank you for tuning in. Now it’s time for you to go out there. Have a great day and get your work done.