As we prepare to batten down the hatches for what experts are calling the second surge of the Covid-19 outbreak, folks that had returned to the office are once again slinking back into their sweatpants and snuggling up on the sofa. With a second return to working for home for folks who typically would be in-office, we thought it would be important to discuss your workers comp liability for these “off-site” employees. And what about the folks that must come into work? Are you on the hook for workers comp if they contract COVID-19?
The answer, of course, is a murky “well, maybe?” Under most state workers’ compensation laws, companies are liable for any injuries sustained in the workplace. However, when your typical in-house worker becomes a remote employee and said employee gets injured in their house, most state laws will say that workers compensation claims are still valid, and you will have to provide benefits. Should a case go to trial over the topic, legal experts suggest that the courts will likely focus on how the injury occurred and what task the employee was doing when the injury occurred.
With these guidelines in place, we turned to our own in-house workers comp expert, who recommended that rather than seeing remote workers as “out of sight, out of mind,” you instead treat the home as an extension of your office and thus have policies designed to protect workers in this new environment. Specifically, our expert recommends that you still tout the benefits of a safe and ergonomic work environment and make sure that employees have the tools that they need in order to perform the job functions (as outlined in their job description) as easily as they would in the office. In some cases, it might mean scaling back and altering their job description to add or remove a step or otherwise alter how a project is completed, and this outline should be written down and agreed upon by both the employee and the employer. In addition, our expert recommends that you email an extra copy of your process for reporting workplace injuries, including details on how to seek medical care, who to contact, and what parts of the incident reporting they will be responsible for. In taking these steps, and of course, keeping written documentation of any and all changes you make along the way, you can potentially save yourself from costly litigation, as well as help your employees feel safer in their work environment.
And for those of you for whom working remotely isn’t an option, we wanted to also discuss what happens when an employee who is required to come into work contracts COVID-19 and whether they are eligible for workers compensation. Historically, workers compensation has never really applied to community-spread illnesses caught on the job, simply because PROVING that they were contracted in the workplace was borderline impossible. However, contract tracing has really found its time to shine in the latest global pandemic, such that outbreaks can in fact be traced to an individual, an event, and even a place of work.
According to a recent National Conference on State Legislature article, 14 states have, to date, enacted legislation designed to extend workers compensation coverage to include Covid-19 as a work-related illness. However, the states themselves which include Alaska, California, Illinois, Kentucky, New Jersey, Minnesota, Utah, Wisconsin and Wyoming – do so to varying degrees and for varying types of jobs. For example, Alaska, Minnesota, Utah and Wisconsin limit their coverage to first responders and healthcare workers, whereas Wyoming covers any employee, regardless of their industry type.
Since it is so nuanced, and varies so much state by state, we found this summary from the National Council on Compensation Insurance to be most helpful in determining if and when you should provide workers comp to an employee with Covid-19. Of course, if you’re an Abel HR member, you’re also welcome to call us and discuss the specifics of your state and the circumstances around your specific case and we’ll help you to make the best determination and as always, walk you through every facet of the process.
