In May, we discussed the impact COVID-19 is expected to have on various aspects of an ABA agency’s insurance portfolio. From anticipated liability issues, the shift to telehealth, and aspects of business interruption coverage related to mandated closures. We also discussed concerns surrounding the Workers’ Compensation system as various state governments issued mandates related to coverage for essential workers.
On May 6, the Governor of California took one of the boldest steps in an executive order related to Workers’ Compensation. In it, he mandates (and I’m paraphrasing here) that anyone who went to their place of work during the shelter-in-place order and subsequently contracts COVID-19 is presumed to have contracted the virus on the job and is therefore entitled to Workers’ Compensation benefits.
While Workers’ Compensation is customarily used for occupational disease (think asbestosis), it has largely never been applied to an ordinary disease someone can contract by simply being a participating member of society. There has always been this distinction between something that can only be contracted due to your work environment, versus something that exists universally.
Most of the states that have enacted these new standards for workers contracting COVID-19 have allowed for a defense from the employer in the event of a claim. But, the onus is placed squarely on the shoulders of the business to PROVE that the employee contracted the virus elsewhere.
For our purposes here, let’s assume your ABA agency has enacted the universally accepted standards for protecting employees and clients from contracting the virus. Namely: following CDC/state/local reopening and operating guidelines, temperature checks, masks or face-shields, gloves, sanitizer, online check-in for clinics, and consistent therapist/client relationships.
If we are doing all of these things, what defense do we have for a questionable COVID claim? Afterall, we don’t yet understand the long-term effects of the virus, it is tough to say how long an accepted Work Comp claim could pose an issue for you.
Prepare – have your employee complete a health questionnaire before their shift. Ask questions pertaining to their contact with COVID or suspected COVID carriers. Ask if they have attended large gatherings or events with people outside their household in violation of local shelter-in-place orders. We continue to hear that the source of many local outbreaks is due to small gatherings for birthday parties, graduations, etc
Respond – if you have a worker who shows symptoms or tests positive, it is important to respond immediately. File a claim right away to preserve your rights. And activate your COVID response plan which should include notifying workers and clients, testing of individuals, cleaning protocol, etc.
Investigate – many Workers’ Compensation insurers are establishing claims teams dedicated to COVID matters. If you are adamant that the employee could not have contracted the virus at work, you need to be vocal with the insurer before they accept the claim. With state and local emphasis on contact tracing for COVID patients, it might help to understand the true nature of your employee’s exposure.
The Liberty Company COVID resource page has many useful resources for you including various re-opening plans and checklists. You can access the clinic and childcare documents below, as well as a communication plan you can adapt for your specific operations:
