Under most state workers’ compensation (WC) laws, COVID-19 may be a compensable, work-related condition only if an employee can show that:

  • He or she contracted the coronavirus while performing services growing out of and incidental to his or her employment; and
  • The disease arose out of that employment (work relatedness).

As of June 30, 2020, however, several states have made—or are in the process of making—changes that reverse this burden for certain employees. In general, these changes mean that it would be an employer’s burden to prove that an employee did not contract COVID-19 on the job, rather than the employee’s burden of proving that he or she did contract it on the job. While most of these changes apply only to certain types of workers—such as first responders, health care providers or those who are otherwise deemed “essential”—some changes apply the new presumption more broadly.

Many states have also taken actions that aim to reduce the impact of COVID-19-related claims on an employer’s WC premium rates.

Action Steps

Employers should follow all workplace safety guidance from the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC) and local health authorities to minimize the risk of employees contracting COVID-19 on the job.

Employers should also familiarize themselves with state laws that may impact their workers’ compensation COVID-19 obligations and premiums.

Background

Workers’ compensation is a no-fault system that provides medical expenses and lost-income replacement for employees who sustain injuries or illnesses that arise out of and in the course and scope of their employment.

Each state has its own workers’ compensation law that governs of the process of determining whether an injury or illness is work related and therefore compensable.  Although workers’ compensation benefits are usually the exclusive remedy against an employer for any compensable condition, employers may also be subject to private lawsuits if they intentionally cause harm to an employee or fail to have workers’ compensation coverage as required.

COVID-19 Compensability Presumptions 

The table below provides a general overview of the changes to state workers’ compensation laws that have been enacted to provide a presumption that COVID-19 is a compensable, work-related condition for certain employees. Similar changes remain pending in other states. Employers should become familiar with (and regularly check for updates to) the detailed requirements that may affect them under all applicable laws.

State

Affected Employees

Order/Change

Alaska First responders and health care workers. Senate Bill 241
California All employees not working from home. Executive Order N-62-20
Florida Front-line state employees. Directive 2020-05
Illinois First responders and front-line workers (including essential workers who are required to encounter members of the general public or to work in employment locations of more than 15 employees). House Bill 2455
Kentucky All essential workers. Executive Order 2020-277
Minnesota First responders and health care workers. HF 4537
Missouri First responders. Emergency Rule
New Hampshire Emergency response and public safety workers. Emergency Order 36
New Mexico State workers who provide direct assistance or care to COVID-19 patients or work inside a facility that provides direct assistance, care or housing to COVID-19 patients. Executive Order 2020-025
North Dakota First responders and health care workers. Executive Order 2020-12
Utah First responders and health care workers. Senate Bill 3007
Washington First responders and health care workers. L&I Policy
Wisconsin First responders and health care workers Assembly Bill 1038
Wyoming All workers. House Bill 1002

Premium Calculations

The premiums an employer must pay for coverage under a workers’ compensation insurance policy is usually determined based on payroll, measures of risk associated with the jobs that workers perform and the number and type of WC claims that have been made against the employer in the past. Due to the effects the COVID-19 pandemic may have on these factors, some states (including Wisconsin, for example) allow employers to reclassify employees or exclude COVID-19-related claims from their calculations. More information on this workers’ compensation change in Wisconsin can be found here.

© 2020 Zywave, Inc.