This post was written by  from our partners at myHRcounsel, an online legal solution for HR professionals. The original post can be found here.

As more states lift stay-at-home orders and give employers the green light to bring workers back on site, one thing employers need to be on the lookout for is an increase in workers’ compensation claims.  Workers’ compensation statutes are no-fault, meaning that employees do not need to prove negligence on the part of the employer to establish liability. It also means the employer cannot use negligence on the part of the employee as a defense to a claim.  In practice, then, employees who are injured or become ill on the job are entitled to benefits like wage replacement and medical expenses, and employer liability is limited, in most circumstances, to only those benefits available through workers’ compensation. 

In response to the COVID-19 pandemic, states have begun establishing policies that create a rebuttable presumption that if an employee becomes ill with COVID-19, they are presumed to have contracted the virus on the job, thus entitling the employee to workers’ compensation benefits.  This is a major change to how workers’ compensation claims are typically analyzed.  Typically, workers need to present medical evidence to prove that their claimed injury or illness was work-related in order to receive benefits.  Here, that hurdle is being removed, and instead it is assumed that the infection occurred at work.

While employers have the ability to rebut this presumption, it will likely not be an easy feat.  COVID-19 can be contracted in many ways, has a multiple-day incubation period and individuals with the virus might never present symptoms.  This means that most claims are likely to succeed, thereby increasing the cost of claims for companies who are already financially strapped. 

California has expanded this new presumption to all workers required to work onsite after March 19, 2020, but many other states including Alaska, Kentucky, Minnesota, Wisconsin and Missouri only apply this new presumption to front line workers like health care professionals or emergency personnel.

To prepare, it is imperative that businesses develop and implement comprehensive Pandemic Response Plans (“PRP”) that adopt CDC and other public health officials’ guidance about infection prevention, symptoms of COVID-19 and when employees should stay away from the workplace.  These plans should also state what engineering and administrative controls the company will employ to minimize risk of infection in the workplace, such as providing protective equipment like face masks and gloves as appropriate, sanitizing common areas and minimizing face-to-face interaction as much as possible. 

Watch for more information on this topic as states continue opening back up for business, legislatures are sure to follow with more requirements and guidance for companies.  As always, our attorneys at PrimePay HR Counsel are here to answer any questions you have regarding COVID-19 and workers’ compensation. 

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Disclaimer: Please note that this is not all-inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion. Consult your own legal advisor regarding the specific application of the information to your own plan.