COVID-19's Possible Impact on the State's Workers' Compensation System
As we are all dealing with the unprecedented changes to our personal and professional lives caused by the COVID-19 pandemic, we at the law firm of Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP (GEK) are fielding many questions from clients, union leadership and community members regarding Workers' Compensation as it applies to this novel coronavirus.
"We at GEK are here—working remotely—and are ready, willing and able to continue to protect and enhance the quality of life for members of the communities we serve," says GEK partner Sherry Grant.
"Since we are in the early stages of the pandemic, there is a great deal of discussion about the impact of COVID-19 on the Workers' Compensation system. Determining whether a communicable disease is work-related must be evaluated on a case-by-case basis. And, the laws are not applied with a broad, national brush; each state has its own Workers' Compensation system."
Examining Two Types of Work Classifications
In California, the Workers' Compensation laws apply to those working on-premises or remotely. The latter category includes those under current state mandate to Stay at Home/Shelter at Home. Because they should be practicing social distancing, there is minimal risk of "work-related" contraction for workers in this category, thus minimizing an industrial cause of the virus.
However, those employees who are continuing to work outside the home because they are deemed "essential," or because they can't work remotely and are needed to provide basic functions to keep a business operational, face a greater risk of viral exposure. The possibility of proving industrial causation is more likely for them than their remote-working counterparts. Even in these early stages of the pandemic in California, the exposure rate for first responders, local safety, and medical personnel is high, with documented cases of infection and death showing a growing toll.
As a general rule and at a different time than what we are currently experiencing, most on-the-job viral exposures are considered "non-industrial." But in today's reality, where employees—in this case, essential—are subjected to a greater risk of contracting COVID-19 compared to that faced by the general public, there is a greater chance of proving the illness arose out of the course and scope of one's employment. Thus, it may be an accepted Workers' Compensation claim.
Proving an Injury or Illness Was Work Related
The burden of proof is on the employee (applicant) to establish that he or she was subject to a special or materially greater risk of contracting a disease than that of the general public. But it is not required to be done in exacting detail; industrial causation can be established based on reasonable probability. The applicable standard of proof as outlined in Labor Code 3202.5 is proof by a preponderance of evidence.
Presently there are categories within the essential employee grouping when it comes to the Workers' Compensation system. Healthcare workers, hospital workers, nurses, first responders, utility workers, pharmacy technicians, grocery store workers, restaurant workers, delivery drivers, etc. are all deemed essential in this new normal.
There is the possibility that the Governor, and/or the State Legislature and the Governor, will take action. "One way to ensure non-healthcare workers are covered by Workers' Compensation is through state legislation," according to John Ruser, president of the independent, nonprofit Workers' Compensation Research Institute.
He continued, "In some cases, legislators passed a law that said certain conditions are presumed to be work-related, therefore all claims that come from a class of workers related to COVID-19 would be compensable. Legislators can pass that." As noted by GEK partner Steve Scardino, this idea could be crafted similar to the legal presumptions of injury previously legislated for local safety members with injuries such as exposure to bloodborne pathogens or cancer.
Collaborating with CAAA
The attorneys at GEK have long been active on the state's legislative frontlines, working tirelessly with the California Applicants' Attorneys Association (CAAA), a 1,000-member statewide organization that advocates for injured workers' rights.
"We at GEK are collaborating with our colleagues at CAAA to analyze and support legislation in light of this pandemic that would allow for immediate access to Workers' Compensation benefits for those contracting COVID-19 on the job," says Adam Dombchik, GEK co-managing partner and past president of CAAA.
"As always, we will continue to provide updates on our legislative efforts, and will keep fighting for the rights of injured workers. We are all in this together, and we will do our part to help the communities we serve get past this pandemic."