Workers’ Compensation Claims During the Pandemic and Mitigating the Risk
While essential workers continue to make their way into the office amid the pandemic, many other Californians have been ordered to shelter in place. At first blush, non-essential businesses may view this as leading to a decrease in workers’ compensation claims because they no longer have employees physically reporting to the office. There could be a decrease in claims for businesses that are closed or have reduced their workforce, which appears to be part of the reason for Insurance Commissioner Ricardo Lara’s Order of April 13, 2020, requiring that some insurers refund premiums. However, essential businesses to which employees still report to work and non-essential businesses that require employees to work from home may not see a decrease and could experience an uptick in workers’ compensation claims.
Consider the following scenarios: A nurse contracts COVID-19. An office assistant required to work from home develops a back injury after using a certain desk chair. A store clerk’s COVID-19 symptoms are exacerbated after continuing to report to work. A teacher required to work from home trips over a power cord and sprains an ankle. An accountant required to work from home contracts COVID-19 from a family member. These are just some of the scenarios that could result during the pandemic. Who is likely to receive workers’ compensation? It depends.
Generally, to receive workers’ compensation in California, an employee must have suffered an injury or disease arising out and occurring in the course of their employment that causes disability or the need for medical treatment. The employee is not required to prove that the employer was negligent or at fault. The injury suffered by the employee may occur as the result of a single incident, for example, a fall. The injury may also occur as the result of repetitive mentally or physically traumatic activity over a period of time, for example, carpel tunnel syndrome. See Cal. Labor Code Sections 3208.1 and 3600. Usually, non-occupational diseases are not compensable, as they do not arise out and occur in the course of employment. Examples of non-occupational diseases include the common cold or flu – they could be contracted anywhere, not necessarily at the place of employment. However, there are times when an otherwise non-compensable injury could be compensable. This may occur when the employment subjects the employee to an increased risk, or aggravates the condition.
Injuries that occur at work may not be compensable if they are a result of intoxication, self-infliction, physical altercation, commission of a felony, or voluntary participation in off-duty recreational activity, among other things. See Cal. Labor Code Section 3600 (a).
In determining liability exposure, given that COVID-19 will likely be considered a non-occupational disease, employers should consider whether their employees who contracted COVID-19 were subjected to an increased risk of developing the illness at work, or whether the employment aggravated the condition. Although there is a risk that an employee who is required to work from home contracts COVID-19 and files for workers’ compensation, it would appear that healthcare workers, first responders, and those who routinely interact with the public as part of their job would have a better chance of meeting this burden. With respect to claims involving work-from-home injuries aside from COVID-19, such as a fall or carpel tunnel syndrome, employers should be prepared to address such claims as if the employee had been injured at their place of employment and consider whether the injury was self-inflicted, a result of horseplay, occurred during non-work hours, etc.
To help minimize workers’ compensation claims, essential businesses should continue to comply with CDC, Federal, State, and Local guidelines and procedures. Businesses that require employees to work from home should review and update their current work-from-home policies and agreements, or consider implementing such policies if they are not in place. The policies should, among other things, address maintaining a designated work area and prompt reporting of any injuries sustained while performing their work duties at home. Businesses that require employees to work from home should also advise employees how they can obtain ergonomic or other equipment necessary to perform their job.
As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules. This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This article does not address other the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.