COVID-19 and Workers' Compensation

With the rapidly evolving business and community environment as a result of the COVID-19 pandemic, here is some basic guidance on how the pandemic could affect workers’ compensation and how employers can respond.

Obviously, an employee with a claimed COVID-19 illness would be a matter of first impression to the Alabama courts; so it is currently unclear how the act would apply to such claims. However, it is our opinion that COVID-19 should be treated as any other illness as it relates to determining whether the illness is compensable. COVID-19 is a “disease,” which should be considered no different from the flu. The act generally excludes coverage for “diseases.” Alabama Code § 25-5-1 (9) (1975), in defining an injury, states that an “Injury . . . shall not include a disease in any form, except for an occupational disease or where it results naturally and unavoidably from the accident” (emphasis added).

Therefore, whether the illness would be compensable would depend greatly on the particular job the employee was performing when exposed and whether the employee has an existing work-related injury. For instance, if an injured worker’s health is already compromised due to a work-related injury, or if the injured worker had to go to medical clinics for treatment of a work-related injury, there is a potential argument that the contraction of COVID-19 by the worker “resulted naturally and unavoidably from the [original work-related] accident.”

Little information is known about COVID-19 to date, but more is learned about the illness each day and that is expected to continue. Therefore, it is extremely important that employers document thoroughly when there is a report of a work-related COVID-19 illness. For instance, when reporting a suspected COVID-19 claim, it would be good practice to—

• Mention COVID-19 in the description of the illness so that it is easily recognizable by the carrier and any other entity which would need to implement specific COVID-19 protocols.
• Determine whether the employee had any contact with a person known to be COVID-19 positive, and if so, document when, where, and how that contact occurred.
• Confirm the onset of symptoms and whether the illness has been confirmed with a positive COVID-19 test.
• Document whether the employee or any member of his or her immediate family has traveled to an area of high risk, and if so, whether or not that travel was work related.
• Determine whether any immediate family members are showing symptoms.
• Determine any other employees who have had close contact (within 6 feet per current CDC guidelines) with the employee.

Existing non-COVID-19 claims could potentially be affected by this pandemic as well. One practical effect on existing claims may be that injured workers are unable to complete approved workers’ compensation medical treatment. Employers should work with their carriers to determine the options for telehealth to treat minor injuries, participation in virtual physical therapy, etc. Telehealth may also be the best option for employers to determine whether a workers’ injury has resolved or whether the injured worker is capable of returning to work. “Return to work” in this scenario would relate only to the worker’s injury and not whether the worker is actually able to return to work due to COVID-19 shut downs, etc.

Ultimately, this is an ever-evolving situation, so we recommend that employers consult with their insurance carriers or third-party administrators to determine how best to handle claims related to COVID-19. We will continue to update on pertinent information related to workers’ compensation and the effect that this pandemic may have on our clients.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2020