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Florida is one of the states with the highest count of COVID-19 cases, and the rate is increasing daily. Many states ordered citizens to stay home or shelter-in-place, which could also happen in Florida any day. In an abundance of caution, many employers laid workers off or ordered them to work from home. Employers are undoubtedly questioning how to handle workers’ compensation cases where employees were working on a modified work status as a result of a work injury, and now are unable to work as a result of being ordered to cease going to the workplace.
If these employees on modified duty are no longer able to work, are they entitled to temporary partial disability benefits? Under Toscano, the First District Court of Appeals has ruled that in order for an injured worker to be entitled to indemnity benefits, there must be a causal connection between the compensable injuries and subsequent wage loss while on work restrictions. 40 Soo.3d 795 (Fla. 1st DCA 2010). As the wage loss would be a result of the precautions being taken by the employer as a result of COVID-19, we recommend not automatically paying indemnity benefits if an employee who was working modified duty with a workers’ compensation claim is laid off or if the employer closes down.
These employees could apply for unemployment benefits as a result of being laid off, and even if there is indemnity entitlement, the employer/carrier is entitled to take an offset pursuant to Florida Statute Section 440.15(10), as these unemployment benefits count as post-injury wages for the purpose of calculating temporary partial benefits owed to an injured worker. The employer/carrier is entitled to a dollar for dollar offset on any benefits received.
Furthermore, employers are likely already experiencing issues where workers do not want to go into the office for fear of contracting the virus. OSHA requires that all employers guarantee an employee a safe and healthy workplace. As long as a safe workplace is provided, the employer may be able to assert that an employee who is on modified duty as a result of a work accident is voluntarily limiting his income. This must be evaluated on a case by case basis as the facts of each situation will determine whether temporary partial indemnity benefits should be paid.
