COVID-19 and the Exclusivity Provisions of Workers' Compensation

As the nation continues to work through issues related to the novel coronavirus, COVID-19, including the impact upon all aspects of employment, there has been a rise in workers’ compensation claims.  However, new efforts are being taken by some to circumvent the exclusivity provisions of many states’ workers’ compensation laws.

States typically apply an exclusivity provision in workers’ compensation matters. These provisions provide that the workers’ compensation system is the exclusive method through which employees may seek benefits for a work-related injury, provided the injury occurred in the course and scope of employment.  Through this no-fault process, employers are insulated from claims of negligence or willful misconduct.  There are exceptions, and if satisfied, employees may pursue not only the workers’ compensation claim but also a claim for damages against the employer.

Many states are undertaking efforts to ease access for employees alleging work-related exposures to COVID-19, a simultaneous effort is underway to circumvent or avoid the workers’ compensation statutes.  The reason for these efforts may be quite simple; higher amounts of payment may be available through civil litigation in comparison to the payments available to employees through the workers’ compensation system.

One such example is the lawsuit filed in Illinois on April 6, 2020, alleging wrongful death.  The estate of a deceased employee has filed a complaint alleging the employer’s “willful and wanton misconduct” through the failure to properly implement workplace safety measures.  The lawsuit further alleges the employer failed to implement preventive measures recommended by the Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and the Equal Employment Opportunity Commission (EEOC), and as a result, the decedent became infected and ultimately died. This, and other lawsuits, are in their early stages and is unknown whether they will be successful.  

Employers can take proactive measures to protect their employees, and at the same time, the business. For example, the obvious steps are to comply with the CDC, OSHA, and EEOC guidelines.  This includes increasing the frequency in which cleaning is conducted, staggering employee work schedules and shifts, maintaining social distancing in the workplace, and providing personal protective equipment such as gloves, masks, and ventilators to all employees, as well as additional resources to promote sanitation.

OSHA also recommends that employers develop an infectious disease preparedness plan. This includes keeping up to date on all federal, state, and local guidance, as well as identification of their workplaces' specific risks to exposure. Employers should also prepare and implement basic infection prevention measures, such as policies encouraging frequent hand-washing and social distancing, as well as those encouraging employees to stay home if they are showing symptoms of the disease. OSHA recommends that employers develop policies and procedures to promptly identify and isolate sick employees. Last, but not least, OSHA recommends that employers develop, implement, and promote flexible workplace policies to accommodate employees impacted by COVID-19.

The CDC and EEOC have provided additional guidance in employer best practices, including:

• Daily reading of employees’ temperatures before their shift and entering the facility.
• Ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat, while maintaining employee confidentiality.
• Removal of ill employees from the workplace.
• Request medical documentation certifying fitness for duty to return to work. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation.
• Screen job applicants for symptoms of COVID-19 after making a conditional job offer; provided, it does so for all entering employees in the same type of job.
• Withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of the same, if the individual cannot safely enter the workplace.

In conclusion, employers are encouraged to maintain flexibility in policies to ensure the safety and wellbeing of its employees, but at the same time, develop a strategy to ensure compliance with these issues.  Employers should remain proactive in implementing workplace precautions to minimize the spread of COVID-19. A strategy to address workers’ compensation allegations is crucial to protect against civil action. Moreover, if a workers’ compensation claim is filed, effective communication with the insurance carrier and defense counsel is critical to properly defend these claims.