Sarasota, FL (WorkersCompensation.com) – As more states are changing or reconsidering rules to ensure that nurses, paramedics, firefighters and others have unimpeded access to workers’ compensation benefits if infected, others battling the novel coronavirus are struggling to be included.
Expanding that access could add tens of millions of dollars in added costs for insurers, which could seek to pass them on to employers. “If you are a health care worker you will have no trouble getting access to workers’ compensation if exposed to the virus, but if you are a grocery worker exposed to the virus, you will face challenges trying to get workers’ compensation, ‘’ said Phyllis Phillips, a mediator and former administrative law judge in workers’ compensation in Vermont.
The real rub for many workers is this: OSHA is enforcing the Centers for Disease Control and Prevention’s guidelines and conducting inspections in response to deaths in hospitals but not other cases, according to an OSHA memo released April 13 and Debbie Berkowitz, worker safety and health program director for the National Employment Law Project, a worker advocacy group. About 4,000 coronavirus-related complaints have been filed against employers that fail to provide safe workplaces but the agency has not issued any citations or fines, according to Berkowitz. Instead, she says OSHA is pointing businesses to the voluntary guidelines.
“OSHA is not enforcing anything,” said Berkowitz, former OSHA senior policy adviser during the Obama Administration. “OSHA does not have the backs of workers. It’s a travesty.”
In response to the criticism, the Labor Department, which includes OSHA, said in a statement: “OSHA will consult CDC guidelines and its own guidance” as it determines whether a workplace is “free from recognized hazards.” “Where OSHA finds a violation, a citation will be issued and a civil monetary penalty imposed.”
While healthcare providers must follow federal safety guidelines to guard against contagion, other businesses are not obligated to do so, leaving it to states and localities to set standards, experts argue. “And sick employees who seek damages, typically through workers’ compensation, must prove they contracted the virus at work,” said Paul Krueger of Ritsema & Lyon in Colorado. “We may soon see some legislation to change this in Colorado, but nothing has happened yet.”
A number of states have recently passed or proposed amendments to their workers’ compensation statutes or have issued other authority to make it easier for healthcare workers, first responders and other essential workers to receive workers’ compensation benefits in connection with COVID-19. These measures generally do so by providing a presumption of coverage for certain employees who test positive for, are impacted by, or exposed to, the virus causing COVID-19. In many of these states the presumption is rebuttable; however in some states the presumption is conclusive.
So far, more than 10 states have implemented authoritative changes.