Workers’ Compensation Changes for COVID-19

Under most state workers’ compensation (WC) laws, COVID-19 may be a compensable, work-related condition only if an employee can show that: 

• He or she contracted coronavirus while performing services growing out of and incidental to their employment; and 
• The disease arose out of that employment (work-relatedness). 

 

As of June 30, 2020, however, several states have made—or are in making—changes that reverse this burden for some employees. In general, these changes mean that it would be an employer’s burden to prove that an employee did not contract COVID-19 on the job, rather than the employee’s burden of proving that they did contract it on the job. While most of these changes apply only to certain types of workers—such as first responders, health care providers, or otherwise deemed “essentialâ€â€”some changes apply the new presumption more broadly. 

Many states have also taken actions that aim to reduce COVID-19-related claims on an employer’s WC premium rates. This Compliance Bulletin provides general information about the COVID- 19-related changes made to state WC laws and policies.

 

Action Steps

Employers should follow all workplace safety guidance from the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC), and local health authorities to minimize the risk of employees contracting COVID-19 on the job. 

Employers should also familiarize themselves with state laws that may impact their workers’ compensation COVID-19 obligations and premiums.

 

Background 

Workers’ compensation is a no-fault system that provides medical expenses and lost-income replacement for employees who sustain injuries or illnesses that arise out of and in the course and scope of their employment.

Each state has its own workers’ compensation law that governs determining whether an injury or illness is work-related and, therefore, compensable. Although workers’ compensation benefits are usually the exclusive remedy against an employer for any compensable condition, employers may also be subject to private lawsuits if they intentionally harm an employee or fail to have workers’ compensation coverage as required. 

 

COVID-19 Compensability Presumptions 

The table below provides a general overview of the changes to state workers’ compensation laws that have been enacted to provide a presumption that COVID-19 is a compensable, work-related condition for some employees. Similar changes remain pending in other states. Employers should become familiar with (and regularly check for updates to) the detailed requirements that may affect them under all applicable laws. 

 

Premium Calculations 

The premiums an employer must pay for coverage under a workers’ compensation insurance policy is usually determined based on payroll, measures of risk associated with the jobs that workers perform and the number and type of WC claims that have been made against the employer in the past. Due to the effects, the COVID-19 pandemic may have on these factors, some states (including California, for example) allow employers to reclassify employees or exclude COVID-19- related claims from their calculations.