Tuesday, August 4, 2020

Do employers need a workplace Contact Tracing plan or app?

If you are an employer, you have a positive duty to protect workers from harm.  Industry-specific guidelines on how to do that in the COVID-19 environment are now published by occupational safety and health organizations (such as  CDC, SafeWorkAustralia, and WorkSafeBC). The physical barriers, personal protective equipment, physical distancing, cleaning guidance and safe-work protocols required to discharge this duty are essential preventative measures. 

Prevention is rarely perfect.  The safeguards, barriers and defenses put in place to protect workers from harm may be subject to inadvertent active or latent defects;  despite multiple layers of precautions, when gaps or defects in prevention align, workers in your workplace may well be exposed to harms including the COVID-19 virus. 

Every jurisdiction has specifically emphasized employer responsibilities during this pandemic.  For example, consider this guidance to employers in Ontario:

The employer is required to take every reasonable precaution in the circumstance to protect the health and safety of workers, and do a risk assessment to determine what parts of the jobsite and what other workers the affected worker would have had contact with.

Based on this risk assessment, the employer may be required to:

  • send co-workers who were exposed to the worker home for two weeks. Ask them to self isolate and self monitor and report any COVID-like illness to their employer
  • shut down the job site while the affected workplace area and equipment are disinfected

[See Government of Ontario, COVID-19 (coronavirus) and workplace health and safety]

No employer wants any worker to be exposed to or infected by this virus; nor does anyone want to see operations shut down or healthy employees quarantined.  Yet, close contact exposures may occur in your workplace; planning for them can mitigate the impact on your employees and operations. 

Just the facts

The science around COVID-19 is still developing but there are four very important facts to keep in mind:

  1. COVID-19 is a respiratory illness contracted when virus particles are either directly inhaled from droplets expelled by an infectious person or indirectly transferred from contaminated surfaces to face, eyes, mouth or nose. 
  2. After unprotected close contact with an infectious person or contaminated surface, an exposed person’s symptoms may develop during an incubation period of 14 days, however, up to a quarter of those infected are asymptomatic. 
  3. An infected person is infectious to others during a communicability period; that period for those with mild symptoms begins two days before the onset of symptoms.  Infected persons are considered infectious until 10 days after onset of illness, as long as they are fever free and have improved. Those with more severe cases may be infectious until two consecutive negative laboratory test results, at least 24 hours apart, which could take weeks to establish.
  4. Just because a person is no longer infectious does not mean they are fully recovered.  Lingering symptoms including fatigue, cough, respiratory and neurological issues may persist. 

Exposure and Close Contact

Unless you are in the healthcare sector, you or your employees may not know when, where, or exactly how an exposure to COVID-19 has occurred.  It is very unlikely a customer will produce a sudden, uncovered cough or sneeze then announce, “I’m positive of COVID-19”.  (If that every happens, your response as an employer would have to be immediate).   More likely, an employee or public health contact tracer will report a close contact exposure, an illness suspected to be caused by the coronavirus, or a positive test result.  The actions you take next are critical to stopping the spread of the disease in your enterprise and the broader community.   

COVID-19 is a respiratory illness.  Your employee breathing in a quantity of droplets from an infectious person, for example, is certainly an exposure that may lead to the development of the disease.  The now ubiquitous plexiglass shields erected in workplaces prevent some of that, but surfaces, tools, and containers may become inadvertently sources allowing a worker to transfer virus particles to their hands then to their eyes, nose or mouth.  Just because a barrier is in place does not mean all potential contact in the workplace has been eliminated; nor do the precautions you take eliminate the possible introduction of the virus into the workplace by other routes. 

Workers may also be exposed to the virus outside the workplace and not realize they have been exposed. Crowded spaces like transit, house parties, and shopping venues have been identified as places where the virus easily spreads.  An employee may be exposed in any of these settings, become infectious, and expose others at work. 

You employees may be exposed at work or in the course of their employment.  It is not uncommon for a worker, customer, or other person in the workplace (such as a delivery person, courier, student, service technician, inspector) to begin to feel symptoms while at work.  Infectious persons (possibly asymptomatic or pre-symptomatic) in “close contact” with workers or customers may inadvertently and unknowingly expose others in the workplace. Definitions of “close contact” vary but if you work within two meters (6 feet) of another worker, customer, or other person in the workplace for fifteen minutes or more, you would likely meet the definition in most jurisdictions. 

Not all exposures or close contacts with a person who is infectious will result in illness. With the knowledge that some people are asymptomatic or pre-symptomatic but infectious, we now know that exposures to this virus may be more common and less obvious than in the above example.   In many cases, the first sign that one of your workers was exposed will be when they report being ill.  Where they were infected may not be obvious.  Their safety and health are paramount but beyond that, investigating the source of the exposure and protecting workers and others in the workplace must be your priority.

A Workplace Scenario

As an employer, you are likely to encounter a case of COVID-19 in your workplace at some point.  Whether or not an employee becomes infected in the course or employment, you are going to have to determine who came in close contact with a source of the infection (an infectious customer or co-worker, contaminated surfaces or discarded tissues used by an infectious person) , which employees should be quarantined, and when the diagnosed and quarantined employees can return to work.  Acting quickly is critical to stopping the spread of the virus and limiting the impact on operations.

Consider this scenario:

Anna and her two other team members worked in close proximity Monday to Thursday.  They did their best to keep physically distanced, but the nature of their work meant working side by side for periods of time.  On Friday morning, Anna woke with a dry cough, headache and fever.  She called her manager’s line and left a message regarding her symptoms; she then called her doctor who told her to self-isolate and immediately referred her to testing.  On the following Monday morning her test results were received:  positive for COVID-19.  After receiving the diagnosis and instructions from her physician, she called her manager with the news.

As Anna’s employer, you will be concerned for her.  You will also have concerns for your other staff and your production.  While it may not be clear if Anna contracted the disease at work, you have a duty of care for your other employees who were in close contact with her and others who may have been exposed through the immediate operational space.

When can my employee return to work?

In the above scenario, Anna will be told to isolate and will not be returning to work for at least 10 days from symptom onset. Isolation prevents sick persons from spreading the disease to others, including family members.  Isolation means not going out for food or entertainment and definitely not to the workplace.

If Anna is well enough and can work from home while isolated, that may be an option; she can’t end her isolation until she is no longer infectious.  The infectious period begins two days before the onset of symptoms and extends for at least 10 days even if symptoms subside.  Beyond the 10 days, isolation is required until the worker is fever free for three days and all other symptoms are resolving. 

Even though the isolation period may have ended, workers like Anna may need more time to recover from other symptoms to return to work. For some occupations, another test may be necessary to confirm a worker is no longer infectious.  Although no longer infectious, many who recover from COVID-19 experience fatigue and other symptoms that may delay a full, safe, and durable return to work.  Your “duty to accommodate” a worker extends to such cases. 

What about close contacts?

Remember, Anna was likely infectious for the two days prior to symptom onset.  It is likely her team members were in close contact with her during that time.  Cleaners, supervisors and others who visited Anna’s work area may have been exposed.  Perhaps she met with her manager or another team concerning the next project.  None of those employees may report being ill (or ill yet). 

The sooner well employees are informed of their exposure, the better the chances of arresting the spread of the disease.  As a precaution, workers with close contact should be told to self-quarantine for fourteen days from the date of exposure.  Quarantine is a means of restricting the contact and movement of a person who has been exposed; it prevents the spread of disease to others.  The following concisely describes what Anna’s close contacts will be expected to do 14 days from last contact with her:

  • stay at home and monitor yourself for symptoms, even just one mild symptom
  • avoid contact with other people to help prevent transmission of the virus prior to developing symptoms or at the earliest stage of illness
  • do your part to prevent the spread of disease by practicing physical distancing in your home

[see How to quarantine (self-isolate) at home when you may have been exposed to COVID-19 and have no symptoms, https://www.canada.ca/en/public-health/services/publications/diseases-conditions/coronavirus-disease-covid-19-how-to-self-isolate-home-exposed-no-symptoms.html]

Exactly how your enterprise will handle COVID-19 absence for those who must isolate or quarantine is up to you.  It may require amended sick-leave policies, new procedures for initiating quarantine, and even supports to enable quarantine to be effective.  Your quick action can prevent cascading exposures to other workers, their family members, and the broader community.  If Anna’s test results are negative for the COVID-19 virus, then her continued self-isolation and quarantine of her close contacts would not be necessary.

If informing employees waits until there is a positive test result, the implications may be more profound. The well employees may have returned to work on Monday morning but once Anna (or a public health contact tracer) makes you aware of the positive COVID-19 test, all employees having had close contact with Anna must quarantine for fourteen days following the last close contact.  The potential length of the quarantine does not change but the delay in starting their self-isolation raises the potential for Anna’s close contacts to unknowingly become infectious and infect others at work, home or in their community.    

In the scenario above, Anna experienced the first symptoms on Friday morning and got her test results on Monday.  That may be close to the ideal case.  Had she come to work ill, the potential for a wider exposure would expand.  The fact she stayed home and got her test result so quickly means she had limited contacts and the virus had limited opportunities to spread.  Co-workers with close contact would count their quarantined period from their last close contact.  Team member that worked with Anna on Wednesday or Thursday would count their quarantine date from their last close contact with Anna.  Hopefully, quarantined employees will not get sick but if they do, they will not spread the disease further.  Quarantined workers can return to work once the quarantine period expires if they are otherwise healthy and symptom free.

Can I leave identifying close contacts up to public health contact tracers?

Public health contact tracers have special training and knowledge to do their jobs but you, as an employer, have a duty to protect your workers.  As an employer, you have important information for contact tracers. You know your workplace and are in the best position rapidly identify close contacts.  Your attendance records, work schedules, employee contact information, building entry logs, and meeting minutes can help you rapidly identify close contacts and prevent wider exposure.

It may be that you as an employer will be contacted by public health with information that an infectious customer, technician or other person was at your workplace, raising the possibility of close contact exposure.   Your records of who was working with or serving that customer will be important to the contact tracer but also to your ability to fulfill your duty of care for your employees.  Remember, the faster exposures are identified, the sooner the spread of the virus can be halted; the impacts on your workers’ health and your operation’s production are limited the sooner you act.

Isn’t there an app for that?

Many countries and some employers are mandating or recommending smartphone apps or other technologies to facilitate contact tracing.  Korea, Singapore, the UK, Iceland, Norway and others have implemented programs with varying degrees of success.  The apps generally use Bluetooth technology to register either location and/or proximity to others with the app or tracking “token”.  If a person is identified as infected with COVID-19, the app can quickly identify others who may have had close contact during the infectious period. [see Ryan Brown, Why coronavirus contact-tracing apps aren’t yet the ‘game changer’ authorities hoped they’d be, CNBC, July 3, 2020].

These apps are not without controversy.  They only work well if widely enabled on many devices, so public acceptance (or government mandate) are required.  In Singapore, for example, temporary foreign workers are required to carry a tracking token and that interacts with the nationally mandated smartphone app (voluntary for citizens).  [see Saira Asher, Coronavirus: Why Singapore turned to wearable contact-tracing tech, BBC News, Singapore, 5 July 2020].  Not all smartphones are capable of handling contact tracing apps and those with greatest vulnerability such as lower income citizens and older individuals may not have access to the latest technology.          

Corporate apps are also available.  These may be adopted and mandate by a firm for employees but there are both privacy and efficacy issues.  Not everyone is OK with 24 hour a day GPS tracking by an employee or a government.  Questions about how data will be collected and used are often raised. 

Privacy issues aside, efficacy issues include the false positives of proximity.  Even if the app only measures proximity to another smartphone for a given period (say, 15 minutes), that may not mean any exposure has taken place.  Just because the agent renewing your insurance or the Uber driver were taking you to your appointment were close enough to register contact in a tracing app, the presence of a plexiglass shield  or divider will not be registered;  if either you or the other person is identified as infectious, the close contact warning would be a false positive.  The converse is also true; a missed close contact is like a false negative.  If an infectious person does not have the app or token (or the device is out of power or app not enabled), no close contact can be recorded.  Tracing apps cannot record proximity to environmental exposures and may yield a false sense of security.   These technologies cannot detect the virus; they only detect proximity (or location, in some cases).  

Take action now

Before COVID-19 hits your workplace, put your plans in place.  Besides doing what is necessary to comply with OSHA and public health orders or guidance, you need to have a plan for what to do when an employee or public health identifies a COVID-19 exposure or transmission. Your plan may include containment and decontamination teams, but you will need to address policy issues like when and how to isolate, deep clean and disinfect the area concerned.  Your personnel plan for containment, informing close contacts, supporting quarantine, isolation and return-to-work is even more important.  The speed and thoroughness of your actions to stop the chain of transmission is essential to the safety and health of your employees and others in your workplace.  With that in mind: 

  1. Prepare:  develop policies and procedures so staff know what to do if they feel ill and particularly if they are diagnosed with COVID-19.  Privacy laws and policies will vary so keep those in mind as you prepare.  Confidentiality is important and safeguards should be built into your policies and procedures. Involve staff and union representatives in your plan development. Consultation, addressing concerns, developing policies, and then training staff will challenging in the COVID-19 era but critical to your planning and preparation.   
  2. Update and keep current:  Where people work, seating floor plans, travel records and entry/exit logs need to be accurate and immediately available when required.  Meetings may not always have minutes, but every meeting should have a record of attendees, location and times. Update employee contact information for home, mobile phone numbers, and email.
  3. Operationalize your plan:  Assign specific resources to manage suspected or known COVID-19 exposures.  Delays in identifying close contacts can result in wider spread within your operations and beyond.  Having key resources familiar with operations and records, knowledgeable of your policies and equipped with the commensurate authority to act will be necessary.  Be sure to build redundancy into your plan. Your plan needs to operate even if the specific resources become ill or unavailable.
  4. Consult, train, build awareness:  Your operations depend on people.   The very steps necessary to limit the spread of COVID-19 and facilitate contact tracing need to be understood and concerns addressed in advance of any need.  Activity logs, attendance at meetings, entry and exit logs are necessary but concerns over why they are needed, how long they will be kept, who has access and the purposes allowed for that access need to be clear and understood.  Build awareness of your plans and why the procedures are needed to protect workers and others in the workplace.
  5. Build resilience:  For the near to medium term, COVID-19 is part of our reality.  Anticipating the consequences of exposures and close contacts in your workplace can mitigate against the greatest impacts and accelerate your ability to keep workers safe and restore operations.  Having your plans and resources in place, assigning and cross-training personnel, and testing your plans are essential to restoring and maintaining the health and safety of your employees and the success of your operations.

COVID-19 will be in our workplaces for some time—likely measured in years rather than months.  Whether this or some other infectious disease, workplaces must adapt in ways to protect workers and others in the workplace.  

Wednesday, June 3, 2020

Are workers getting workers’ compensation for work-related COVID-19 illness?

Workers contracting the COVID-19 virus in the course of their employment are claiming workers’ compensation.  Just how many workers’ compensation claims for work-related coronavirus disability have been filed to date is not reported in most jurisdictions but a few recent reports provide some insight into what may be a significant class of ongoing workers’ compensation claims.

Health care workers are filing and receiving workers’ compensation claims

It is no surprise that those on the front lines of treating those infected with the COVID-19 virus will be at elevated risk of contracting this disease.  Some doctors, nurses, healthcare attendants and personal care aides as well as cleaners and other personnel working in close contact with the sick are contracting COVID-19 despite administrative controls and personal protective equipment (PPE).

Washington state was hit early and hard with COVID-19.  Acute care centres and long-term care homes became the epicenter of serious and fatal outbreaks of the virus. Work-related COVID-19 claims followed.  Reported data from Washington state’s exclusive state fund shows Washington State’s Department of Labor and Industries (L&I):
“ … began taking COVID-19-related [workers’ compensation] claims on March 1, …. Since then, 1,074 total claims were filed statewide by May 20, and 931 of them were accepted, according to the data…Nearly 85% of workers’ compensation claims related to COVID-19 filed from Whatcom and Skagit counties were from healthcare workers…” [Denver Pratt, “Healthcare workers make up majority of COVID-19 workers’ comp claims in Whatcom, Skagit”, Bellingham Harold, May 27, 2020 ].

Claims are being filed beyond the healthcare sector

Just north of Washington State, the Canadian province of British Columbia was similarly hit early with cases of coronavirus.  Again, acute care and long-term care centres have experienced dozens of outbreaks resulting in infections and deaths of both residents and staff in these congregate settings.  Work-related COVID-19 infections also spread in settings outside of health care.   As in many other jurisdictions, prisons and food processing plants have also experienced significant COVID-19 outbreaks in BC.

The exclusive workers’ compensation insurer in the province, WorkSafeBC reports: 
Ind. classification unitIndustry subsectorClaims registered
Acute CareHealth Care and Social Services173
Long-Term CareHealth Care and Social Services64
Ornamental Nursery or Floral Field ProductionAgriculture23
Residential Social
Service Facility
Health Care and Social Services15
Pre-hospital Emergency Health CareHealth Care and Social Services14
Local Government and Related OperationsPublic Administration12
Daycare Centre,
Preschool, or Playschool
Other Services (nes)12
Community Health Support ServicesHealth Care and Social Services10
Physician Professional ServicesHealth Care and Social Services9
Pulp and Paper MillWood and Paper Products7
Law EnforcementPublic Administration7
Outdoor Sport TourAccommodation, Food, and Leisure Services7
Retirement Home or Seniors' Home (accommodation only)Health Care and Social Services7
Commercial Cleaning
or Janitorial Services
Other Services (nes)5
Security or Patrol
Other Services (nes)5
[WorkSafeBC, COVID-19 claims data by industry, (as of May 27, 2020)]

These data reflect a much broader range of industries where workers have filed claims.  These may still be early days and the table above only reflects classification units with 5 or more claims registered.  The table illustrates that workers in a broad range of industrial and occupational situations are contracting this disease and becoming disabled.

Not all claims accepted … or accepted yet

Before a workers’ compensation claim for COVID-19, the workers’ compensation insurer must receive a claim.  Although reporting the injury or illness to the employer directly may be a requirement, most jurisdictions allow a year or more for a claim to be registered with the workers’ compensation insurer.  The one-year timeframe is common but there are both shorter and longer windows for filing a workers’ compensation claim.   Nevada allows just 90 days from the discovery of an occupational illness; Pennsylvania allows 300 weeks from the last exposure.  These early reports from Washington and British Columbia, therefore, should not be reflective of all the cases that might eventually result in workers’ compensation claims.

Once a claim is registered, the workers’ compensation adjudication process kicks in. Among the questions that must be determined are the following:
  • Is this claim from a “worker” as defined by legislation or policy?
  • Is the claim work-related?

Focusing only on medically established cases of COVID-19 infection, not every claim registered with the workers’ compensation claim will result in an accepted workers’ compensation claim.  If the person filing the claim is not covered by the workers’ compensation legislation or policy, the workers’ compensation insurer has no jurisdiction and the claim will be rejected.  If the worker is covered, but the COVID-19 infection was not work-related, then the claim may be denied (or “disallowed” in some jurisdictions).  This determination is often lengthy and may involve the weighing of evidence concerning the work-relatedness of the disease.
Some jurisdictions have put in place “presumptions” regarding COVID-19; if a worker is in an essential occupation and contracts COVID-19, the infection will be considered work-related unless the presumption is rebutted by other evidence.  Presumptions serve several purposes.  They simplify and often shorten the adjudicative process for the workers’ compensation insurer. Presumptive clauses may improve consistency of decision making and reduce the administrative time and effort at determining work-relatedness on every claim.  That is not to say individual claims adjudication won’t arrive at the same conclusion; a presumption may obviate the need to gather and weigh scientific and medical evidence repeatedly. Presumptions may also shift the onus of proof away from the worker.  The announcement of a presumption also raises awareness of the risk and possibility of claiming workers’ compensation.  The downside of presumptions, however, may result in the acceptance of some claims that are not truly work related.  The converse is also true:  the lack of a presumption may result in workers actually disabled or killed by the work-related COVID-19 will not result in an accepted workers’ compensation claim.

When will we know the true extent of work-related COVID-19 workers’ compensation claims?

These are early days of a pandemic.  It will be years before all of the cases of work-related COVID-19 that have occurred to date are filed, adjudicated and accepted.  That said, the early data provides some evidence of just how many workers may have entitlement to worker’ compensation for their work-related COVID-19 illness, disability or death.

WorkSafeBC reports far fewer claim filings to date than Washington state.  Of the 514 claims filed as of May 27, 2020, 186 have been allowed.  Two-thirds of these allowed claims arose from the healthcare sector. About a third of claims have been disallowed or rejected with about the same proportion either pending or suspended, often awaiting additional information.

The differences in reported and accepted claims between two jurisdictions of similar size, economic structure, and geography are likely not relevant at this time.  The development of the pandemic in these two jurisdictions has been very different.  The sectors impacted overlap but are not the same.  That said, data from both jurisdictions can highlight the risks workers are facing during this pandemic.

Is a coronavirus COVID-19 infection reportable

It should be noted that Washington State and British Columbia have exclusive workers’ compensation agencies.  Both the Department of Labor and Industries in Washington State and WorkSafeBC are also the principal occupational health and safety agency for their respective jurisdictions.  It may be that incidences of work-related COVID-19 are more likely to be reported than in jurisdictions where workers’ compensation is a separate authority.  Regardless of the agency responsible for occupational safety and health, there is a general requirement for work-related COVID-19 cases to be recorded or reported.

In the US, the Occupational Safety and Health Administration (OSHA) reporting standards would require a COVID-19 illness be recorded in OSHA 300 logs.  In a May 19 Enforcement Memo, OSHA [see Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19)]  revised its reporting requirements specifically for COVID-19, noting:
Accordingly, until further notice, OSHA will enforce the recordkeeping requirements of 29 CFR 1904 for employee COVID-19 illnesses for all employers according to the guidelines below. Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.

The standard does not apply to employers with 10 or fewer employees and certain employers in low hazard industries.  That said, all employers have a duty to investigate reported injuries and illnesses regardless of any reporting requirement.  As noted in my previous post, contact tracing is going to be an important factor in determining work-relatedness [see Should workplace health and safety go back to “normal”?].  All jurisdictions require an employer to consider an injury or illness to be work-related if an event or exposure in the workplace either caused or contributed to the resulting condition.  COVID-19 falls clearly in this category.

Employers may fear reporting a work-related injury or disease because of possible detection of a safety or health violation. Employers may also be unaware of their obligations or the protections offered by workers’ compensation.  Workers are typically obligated to report work-related injuries or diseases to the employer but may not always file a claim for a variety of reasons including fear of reprisals from the employer, a lack of understanding of their rights, and the loss of earnings not covered by workers’ compensation.

Removing barriers to filing a claim for work-related COVID-19

Many workers and employers are not fully aware of the potential for a workers’ compensation claim related to COVID-19.  This barrier is addressed to some degree by agency promotion and open source reporting illustrating accepted workers’ compensation claims.

There are many barriers to receiving workers’ compensation [see  Why aren’t all time-loss work injuries compensated?].  Some barriers relate to misperceptions.  Workers may fear filing a claim will hurt their employer at a time when businesses are suffering. Employers may similarly worry about the impact COVID-19 claims will have on their premiums.  To address this barrier, some workers’ compensation boards have differed premiums, exempted payroll protection or emergency wage benefits from premiums, or addressed the experience rating of premiums.  Nova Scotia’s Workers’ Compensation Board announced that, “Employers who have front-line workers contract COVID-19 due to their work will not have the costs of those workplace injury insurance claims impact their industry rate or individual experience rating…”.  Instead of the COVID-19 claim costs being included in calculation of experience rating, the costs will be pooled across the overall employer base.  [see Nova Scotia, Workers’ Compensation Board , “WCB Nova Scotia announces further support for employers during COVID-19”, NS WCB News,  (May 29/20)].

Employers and workers may also be unaware of the exclusive remedy workers’ compensation provides.  In almost all jurisdictions in North America, workers’ compensation protects employers from being sued by workers harmed in the course of and out of the duties related to their employment.  The few exceptions relate to employer actions that amount to deliberate or egregious disregard for a worker’s heath or safety.  Although certain states do not permit such actions (Alabama, Georgia, Indiana, Maine, Nebraska, New Hampshire, Pennsylvania, Rhode Island, Virginia, and Wyoming), the threshold of proof in those that do is extremely high.  Workers’ compensation is a no-fault system and effectively shields the employer (and other workers) from being sued by workers with work-related injury or disease.

More data needed

Accepted workers’ compensation claims are a trailing indicator at best.  The timeliness and transparency of workers’ compensation claims data for COVID-19 claims are important.  While it may take years to fully assess the impact of this disease on workers and workplaces, the knowledge of the occupations and sectors at risk can better inform prevention activities and awareness of hazards.  Data on claims reported, accepted and denied inform workers, employers and policy makers.  Just as important are process times; knowing how long it takes for cases to be reported, claims registered, determinations made and payments issued are essential to policy makers, employers, workers and their families.

Thursday, May 7, 2020

Should workplace health and safety go back to “normal”?

Let me be emphatic:  a pandemic was inevitable.  Maybe not this COVID-19 virus pandemic but a pandemic involving a virus with close-contact transmission and serious health consequences was absolutely going to happen.  Every strategic planner knew it and, to their credit, many organizations planned for it.  Their plans might not have been perfect, but many plans addressed situations where employees would be unwell for extended periods of time (and worse).  Planned for or not, this pandemic is changing workplace health and safety.

The COVID-19 pandemic is revealing vulnerabilities in our workplaces.  These occupational health and safety vulnerabilities were there all along; many were known (or should have been known) but were latent —without consequence until the harsh, impersonal reality of this virus brought them to into stark focus.

We are at the early stages of businesses reopening and envisioning what the workplace will look like when the pandemic recedes.  Knowing what we know now, should workplaces simply plan to go back to the old “normal”, or is now the time to revamp workplace health and safety?

Why are our workplaces vulnerable?

Every workplace has hazards.  Some hazards present obvious risks to workers.  Employers have a duty to assess and manage those risks.  Many of the actions necessary to prevent transmission and protect workers from infectious-disease risks are well known.  Some protections are built into the design of workplaces and the structure of safe-work procedures—protections that are maintained through training and supervision.  Together, these fundamental barriers, safeguards, and defenses decrease the risk of harm arising from those ever-present and emergent hazards. 

The COVID-19 pandemic has revealed defects and deficiencies in the barriers, safeguards and defenses that would otherwise protect workers from harm. In retrospect, it is obvious that care workers moving between long-term care homes for the elderly carry the risk of transmission between facilities.  It is now painfully clear that workers in close contact with each other in meat processing plants or agricultural bunk houses could spread disease to each other.  We always knew we should not come to work sick, but we let our workplace culture view those who came to work despite the sniffles, mild cough or fever as heroic.  The hazards were there all along. 

In hospitals and on the front lines of emergency care, the urgency of ministering to others and dealing with staff shortages may have created gaps in those defenses and safeguards we failed to recognize until now.  The virulence of this virus has revealed how minor gaps in any of our safeguards can result in an infection with serious health consequences.  The supply of our Personal Protective Equipment (PPE) may have been assumed sufficient in the past; we know now that gaps here can be fatal to the very people we need to care for us and manage this pandemic.  Even minor defects in the quality of PPE can result in exposure that can decommission a valuable, scarce staff member or team for weeks in quarantine or, at worse, result in infection, illness and even death.

Failure to fit-test respirators, to train the proper use of PPE, ensure initial quality, safely maintain stockpiles, and ensure the availability in sufficient quantities of quality product always exposed workers to greater risk.  COVID-19 laid bare those vulnerabilities.   It is one thing to have safe work procedures, require PPE or mandate hand-washing with hot water and soap but quite another to supervise or assure adherence to those safe work procedures.  We knew these shortcomings were there but their consequences seemed minor; the apparent time/effort cost of compliance lost out to the more immediate benefits (and often rewards) of time and production.  This pandemic has changed all that.

To be clear, it is rarely one defective product, one error in practice or one oversight in supervision or training that results in harm.  Jobs are typically designed with multiple barriers, safeguards and defenses that prevent harm.  To use the late James Reason’s "Swiss cheese” analogy, it is the alignment of holes or defects in the barriers, safeguards and defenses that allows a straight-line trajectory between the hazard and the worker that results in harm. The COVID-19 pandemic has illustrated just how porous our layered protections really are. Reducing the size and number of those “holes”, particularly those revealed by this pandemic, is necessary if we are to progress toward any new sense of normal.

Will the defects in our barriers, safeguards, and defenses really matter when we get back to “normal”?

The world has changed and there is no going back.  We know this virus is going to be here for a while.  Massive lockdowns have had their effect.  The mantra of “flattening the curve” has been achieved in many (but far from all) places.  So far, only a few jurisdictions have seen their health systems overwhelmed as we saw in New York, Italy and Spain.  Lockdowns have bought us time. Next comes the hard part.

Economic activity will resume.  Consumers may be wary of returning to the market place and workers may also have concerns for their health and welfare as much as their livelihood as they return to the workplace.  In this next phase of our pandemic experience, any gap or defect in our barriers, safeguards, and defenses can result in local shut downs and community spread.  The cost of a local outbreak may be an immediate lockdown of a community and no guarantee of a rapid return to production or service for the enterprise.

There may be a vaccine at some point… maybe. There may be a treatment for the worst cases….maybe.  Neither looks imminent and the long-term prospects for immunity are unknown for those who have had the disease. 

Testing, containment, and contact tracing is the new mantra for controlling this pandemic but that does not mean any workplace can return to its pre-pandemic state. 

How do we get to the new normal?

Every workplace will have to navigate the new reality, informed by the science of workplace safety and health and the imagination that comes with local knowledge.  There may be new resources to help but ultimately workers and employers are going to have to put their lives and the lives of those they serve on the line.  Shrinking if not eliminating the gaps and defects in our barriers and safeguards has to be the priority. 

The vision of workers and workplaces safe and secure from injury, illness and disease cannot be achieved without excellence in prevention.  Jobs, processes and equipment must be designed to minimize risk. Managers and supervisors must continually monitor and refine systems and incentives.  Training must be thorough and frequent. There is no point in telling staff to “work safely” while praising production achieved by cutting corners.  I’m was guilty as anyone in the past for pressing ahead to work with a runny nose or feeling a little ill—that just can’t happen in this new reality. 

Work is still good for your health and wellbeing.  Work can be therapeutic for physical and mental injury recovery.  That doesn’t change, particularly for most workplace injuries.  Illness (feeling ill) and disease (test-positive diagnosis even if feeling well) are in a different category in this new reality.  Workplace culture—the way we handle illness and actual asymptomatic test-positive or possible disease—has to change.   If workers aren’t empowered in their workplace and supported financially and emotionally to stay home, all of us may suffer the consequences. 

There will be consequences… and challenges

As we progress through this pandemic, there will be more people infected but more will recover, presumably with some immunity for some period of time.   Already, questions concerning the organization of work teams are beginning to arise.  Should workers who have recovered be grouped together? How much detailed contact recording should we do in anticipation of a positive case with an employee?  How do we determine who is a close contact?  What do we do when a person in the office or shop floor does test positive?  Who will sanitize a test-positive employee’s work station and what happens in the mean time?

Almost all businesses will have lower productivity, at least initially.  New staff will still have to be oriented and trained to the new reality; existing staff will have the added complication of unlearning  behaviors and replacing them with new ones (it’s hard to change a reflex like shaking hands when meeting a client).  Even the way we orient, educate and train will have to change.  Large conferences and classroom sessions may have been efficient but won’t work for some time to come; smaller groups and innovative delivery methods may be effective if somewhat slower alternatives.  

Controlling customers in retail, having fewer workers in call centres, providing wider spacing on production lines, mandating PPE (and allowing the time to put it on, test and safely remove), increasing site sanitation and hygiene—all these measures will be necessary for months, perhaps years to come.  This will alter production timing and costs but may make alternative designs and ways of doing things safer, more efficient and perhaps more profitable in the long run. 

Your workplace health and safety procedures are going to have to change, too.  Each change in procedures, process design and operations can generate potential issues for workplace health and safety.  Moving from open-office floor plans to more offices, staggering working and break hours, adding physical dividers to workspaces, changing ventilation, adding more wash stations, allowing more time for sanitation—these are not trivial changes to the workplace.  Each change has immediate and intended consequences but also unintended ones.  Evacuation plans change when open spaces suddenly have walls, for example.  Cleaners will need more time between those working hours to increase surface cleaning.  And those contingency plans you have in case of fire or flood or evacuation are all going to have to be revisited to take into account the changed environment and physical distancing requirements. 

COVID-19 is potentially everywhere but your community, your plant, or your office may be COVID-19 free, at least for a time.  That doesn’t mean you can dispense with prevention or count on the absence continuing.  You have to prepare for when this pandemic comes to your operation. 

Workplace transmission of COVID-19 may well result in workers’ compensation claims or potential action from customers or other non-workers in the workplace.  Incident investigations are going to have to include contact tracing.  The interactions of field staff, customer contacts on-site, delivery personnel movements, and cleaning staff patterns must be part of every incident investigation.  Record keeping becomes less of an accounting tool and more of a health and safety imperative.

You are going to need very detailed plans on what to do when a member of your staff, a customer, supplier or visitor to your worksite tests positive.  The immediate cleaning and sanitation needs are obvious but who does what, how do you determine close contact are just the beginning.  How long will you have to close, will key staff members be forced to quarantine (and will you pay them while well but in quarantine), what happens to non-close contact workers who are displaced---just some of the questions that will need answers.  The general duty to protect workers is not diminished in a pandemic.

The bad news is that many businesses will not survive the transition to the new reality.  There will be disruptions and cost pressures, bankruptcies and closures, and operations that resist necessary changes (sometimes with no consequences in the short term, reinforcing actions that put workers in danger).  And even if normal economic theory applies and new enterprises fill the breaches created, the risks do not just disappear. 

And the good news?

There are positives to all this.  If nothing else, there is a heightened awareness of occupational hygiene and safety in the workplace.  We may not have been ready for a pandemic, but ready or not, workplaces are rapidly adapting and innovating now.

We may not have a vaccine or effective treatment yet, but we do have solutions to prevent the spread of this disease in workplaces and communities.  The solutions recommended by public health around the world are based on tried and true principles.  Most of the advice from the Spanish Flu pandemic a century ago applies today:  wash your hands, isolate the sick, keep physical distance, wear a mask, and avoid large gatherings like funerals. 

We may not have all the answers about this virus but we have the sciences of genetics, epidemiology, and statistics to accelerate our understanding.  We have science-based principles protect workers and others in the workplace.  The “Hierarchy of Controls” has been central to health and safety since the middle of the last century.    The physical distancing (eliminating the hazard), those now ubiquitous plexiglass barriers in retail (engineered controls), and markers directing flow in supermarket aisles (administrative controls), and even mandated masks on planes and buses (personal protective equipment) are principle-based and the best defense we have for now.

Perhaps changes in work procedures will result in fewer injuries and work-related illnesses overall as processes are reviewed and re-designed.  A shift in workplace culture towards prevention of COVID-19 may include a more general re-think of priorities and incentives in the workplace.   Already, workplaces are innovating based on what we know.  Processes, equipment, and physical plants are being re-imagined in light of the pandemic with greater safety and health for workers.

That’s not to say workers won’t get hurt in our redesigned workplaces.  Physical injuries and non-COVID-19 injuries are still a risk in every workplace.  Trips and falls still are still happening; cuts, contusions and fractures are still common; mental injuries and other work-related trauma are still very real injuries in our workplaces.    

Workers are still going to need treatment and rehabilitation for injuries.  Physiotherapists may need new protocols for working with their patients but the work they do is vital to increasing function and preventing disability.  Prosthetists are still going to have to work one-on-one with amputees.  Some professions may be able to work remotely with some clients some of the time.  The good news here is that there are ways to work safely and manage the risks revealed in this pandemic.

What happens if we get a broadly effective treatment, an effective vaccine, or reach “herd” or community immunity?  Many of the changes made because of this pandemic will persist.  And that may be for the best. 

We were not “lucky” with this pandemic –it is serious and deadly but could have been more so; this pandemic has revealed vulnerabilities that were always in our workplaces.  Hopefully, in making workplaces safer, healthier and more resilient for this pandemic, we will re-imagine workplace health and safety … and be far more ready for the next one. 

Thursday, April 23, 2020

Are Workers’ Comp Insurers ready for what comes next in the COVID-19 crisis?

[Supplemental background for students of DMCCJ – Workers’ Compensation and Return to Work and DMCCL- Insurance and Other Benefits – Pacific Coast University for Workplace Health Sciences]

Workers’ compensation insurers and legislators are taking the first steps in dealing with the COVID-19 crises.  Are they ready for the operational, policy and financial challenges coming their way? With the challenges emerging, the public steps announced in some jurisdictions may provide insight into what lies ahead for those who work in and with workers’ compensation.

Operational challenges and risks 
Like other employers, workers’ compensation insurers and regulators face significant operational challenges during this crisis including: 

  • Who is essential to keep us operating?
  • Can we keep essential staff safe (at workplaces, with clients, or working from home)?
  • Are we able to safely and securely leverage technology so staff can work remotely?
  • Is there enough depth, knowledge and cross training to accommodate possible losses or incapacity of key personnel?
  • How do we handle communications with clients virtually in a secure way?
  • Will essential staff in our call centres have to spread out to comply with physical distancing?
  • Is the staff isolation we are imposing contributing to mental stress and strain?

For workers’ compensation insurers, there are additional complications in their day-to-day operations.  In-person medical exams are often required to determine disability or treatment, site visits may be needed to determine causation or return-to-work accommodations, and personal home visits may be required to facilitate recovery and vocational rehabilitation or counselling.   

The medical and rehabilitation services often provided by workers’ compensation typically are very “hands on”. How are practitioners to deliver physiotherapy or massage therapy during periods of physical distancing?  The absence of such treatments may prolong recovery and lead to greater disability and suffering. If an injured worker contracts COVID-19 from a workers’ compensation official or provider in the course of treatment for a physical injury, that will complicate recovery and claim costs.   

Elective surgeries required as part of a clam may be delayed because of the pandemic.  The resulting increased duration will not only increase claim costs, the effectiveness of the surgical intervention may be degraded or recovery prolonged because of the pre-surgery delay.  There will be those who deteriorate or develop secondary conditions as a result of such delay; secondary mental injury is a real risk.

Sadly, some key personnel in workers’ compensation may not be able to return to work.  Experience and knowledge often come with age, but so does vulnerability to this particular disease.  Many organizations may face the loss of institutional memory and wisdom in the wake of this virus.  Many who survive the virus infection may feel lucky but others will feel guilt that they should survive while others did not. The degree to which this challenge may impact particular insurers remains to be seen but the risk is real.  The sidelining due to illness, subsequent disability or even death of key personnel is a real risk as this pandemic progress. The loss of colleagues, family and friends whether at work or not will compound the stresses of those already doing stressful work.  Are organizations capable of recognizing this and doing something about it?

COVID-19 is not going away anytime soon.  That means past workplace behaviours like shrugging off a minor cough or coming to work with the sniffles must stop.  Are HR policies and practices in place to ensure workers can stay home and not feel pressure to return to work before being fully recovered?  Do they have appropriate sick leave provisions so financial pressures don’t tip the scale towards a premature return to work?

Getting back to anything close to normal will be a long process.  Along the way, it may turn out that staff who have had COVID-19 and recovered may be able to return to work with immunity.  If so, should employers request or demand tests of their employees?  Should work be assigned on the basis of immunity? 

What’s going on inside workers’ compensation operations has implications for Disability Management (DM) professionals and others (Human Resource personnel [HR], Return-to-Work Coordinators [RTWC], for example)   who interact with them—all of whom may be dealing with similar issues in their own organizations.  Old contact methods, claim and billing requirements, and ways of doing things may change rapidly and often until a new equilibrium is established. Frustration with increased delays, changing personnel, and evolving procedures or rules may complicate your role and that of injured workers or their families.

Workers’ Comp Policy Challenges and Emerging COVID-19 Specific Provisions                   

In previous posts I raised the issue of compensability of COVID-19 infection and subsequent disability or death.   Existing legislation and policies may be sufficient but, clearly, some workers’ compensation authorities are making explicit statements on who may be covered for work-related COVID-19 exposure, quarantine, temporary disability, treatment and other workers’ compensation benefits.  We are at the beginning of the COVID-19 [first wave?].  As work-related COVID-19 cases rise, the challenge of consistent, fair and equitable application of workers’ compensation laws and policy will increase in importance.

To be clear, most workers who are infected with the COVID-19 virus will not suffer permanent disability or death.  Many may have mild disease or be asymptomatic; even those with what are described as the more common symptoms will be disabled for a time then fully recover.  Valid workers’ compensation claims may well  be established for these cases if certain conditions are met.

As with any other work injury or disease the compensability of a COVID-19 case hinges on its work-relatedness.  Exposure to a disease agent in the course of employment or arising out of employment duties does not always cause disease and subsequent disability.  The central question of causation, however, is the same for COVID-19 as it would be in any other claim.

Existing workers’ compensation policies are generally flexible enough to allow for consideration of COVID-19 claims.  The profile, severity and ubiquity of the risk, however, is different in the COVID-19 context.  Across much of the world, the employed work force has been divided into groups: essential workers and non-essential workers being the most obvious. Of those still working, there are those who are deemed “essential”—a designation that definitionally makes them unlike the rest of the workforce and acknowledges their greater risk.  Exactly how that designation impacts the workers’ compensation claim process is an ongoing challenge but the increased risk acknowledged in the essential designation may weigh heavily in the determination of compensability.  

If you work as a DM professional, you already know that occupational disease claims rank among the most contentious workers’ compensation cases.  They are notorious for lengthy inquiries before decisions.  Appeals or disputes around the acceptance of occupational disease claims are common and often protracted.  As the number of COVID-19 cases rise, the potential for delay in claim decision-making will rise.  Rapid, accurate and consistent decisions will depend on the degree of agility workers’ compensation systems can achieve on these potentially complex cases and constrained operating environments.  

A question of “ordered” testing and quarantine

Essential workers (and other workers) may be exposed to the COVID-19 through their work.  That exposure may come directly (from a customer, a patient, or another worker) or indirectly (from contaminated surfaces, waste or touchpoints).  First responders and medical staff come to mind immediately but cleaners, plumbers, transit drivers, grocery store clerks and many others fit the category of essential workers who are ate at an  elevated risk.

“Exposure” is not typically the basis for workers’ compensation claim.  That said, workers’ compensation statutes in many jurisdictions contain provisions that cover the cost of medically required testing (and potentially the time off while that testing is conducted).  The New York Workers’ Compensation Law provision (section 10 (3) (a)) is as follows:

3. (a) Notwithstanding any other provisions of this chapter, where a public safety worker, including but not limited to a firefighter, emergency medical technician, police officer, correction officer, civilian employee of the department of corrections and community supervision or other person employed by the state to work within a correctional facility maintained by the department of corrections and community supervision, driver and medical observer, in the course of performing his or her duties, is exposed to the blood or other bodily fluids of another individual or individuals, the executive officer of the appropriate ambulance, fire or police district may authorize such public safety worker to obtain the care and treatment, including diagnosis, recommended medicine and other medical care needed to ascertain whether such individual was exposed to or contracted any communicable disease and such care and treatment shall be the responsibility of the insurance carrier of the appropriate ambulance, fire or police district or, if a public safety worker was not so exposed in the course of performing his or her duties for such a district, then such person shall be covered for the treatment provided for in this subdivision by the carrier of his or her employer when such person is acting in the scope of his or her employment. For the purpose of this subdivision, the term "public safety worker" shall include persons who act for payment or who act as volunteers in an organized group such as a rescue squad, police department, correctional facility, ambulance corps, fire department, or fire company.
Care, treatment and even quarantine could be covered by this provision, at least for the occupations and workers provided for by the statute.  A formal quarantine order is made by a physician or public health official is, in part, a test to see if the exposed worker develops disease.  Quarantine segregates an otherwise well worker from others not in quarantine for the duration required for disease to develop to the point of symptoms or detection. 

Some states have moved to make coverage for quarantine an explicit provision in policy or law.  Governor Inslee of Washington State announced on March 5, 2020 the extension of workers’ compensation coverage to health care workers and first responders quarantined by a physician or public health officer.  The workers’ compensation coverage includes medical testing, treatment expenses if a worker becomes ill, and time-loss payments for those who cannot work if they are sick or quarantined.  Other jurisdictions may extend existing policies to cover similar exposure situations but have not published specific guidance on this question.

To presume or not to presume

Every workers’ compensation statute is different and the administration of the law varies by jurisdiction.  In some states, there are hundreds or even thousands of workers’ compensation insurers; there are also self-insured, self-administered firms operating in multiple jurisdictions and employer-union “carve out” agreements, each subject to workers’ compensation rules.  Achieving consistent application of workers’ compensation laws, policies and rules across all these arrangements is more complicated than for jurisdictions with a  single agency or exclusive state funds administering workers compensation (as in all Canadian provinces, several US states and for US federal employees).   . 

To provide greater consistency and to ensure the public-policy intent of workers’ compensation legislators is properly administered, some jurisdictions have announced specific laws, policies, or rules to cover the COVID-19 situation.  Existing laws would make the acceptance of claims by essential workers difficult without such provisions in many jurisdictions, particularly where the onus is of proof is primarily on the worker.  Even in jurisdictions where the law could be interpreted in favour of coverage, explicit “presumptions” can reduce inquiry time and speed claim decision-making.  Presumptions also provide a high profile means of communicating to workers, employers and insurers the intent of policy makers to protect and provide for essential workers during the COVID-19 crisis.

Kentucky is a recent example of a state addressing the specific workers’ compensation question during the COVID-19 outbreak in that state.  In Executive Order 2020-27  dated April 9, 2020, Governor Beshear noted that workers at risk of being exposed to or contracting COVID-19 should be covered by workers’ compensation.  The order directs as follows:
l.   An employee removed from work by a physician due to occupational exposure toCOVID-19 shall be entitled to temporary total disability payments pursuant to KRS 342.730(l)(a) during the period of removal even if the employer ultimately denies liability for the claim. In order for the exposure to be "occupational," there must be a causal connection between the conditions under which the work is performed and COVID-19, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment;
2.       The limitations in KRS 342.040(1) are suspended and temporary total disability payments made pursuant to this Order shall be payable from the first day the employee is removed from work;
3.       For the purpose of this Order, it shall be presumed that removal of the following workers from work by a physician is due to occupational exposure to COVID-19: employees of a healthcare entity; first responders (law enforcement, emergency medical services, fire departments); corrections officers; military; activated National Guard; domestic violence shelter workers; child advocacy workers; rape crisis center staff; Department for Community Based Services workers; grocery workers; postal service workers; and child care workers permitted by the Cabinet for Health and Family Services to provide child care in a limited duration center during the State of Emergency.
4.       This Order shall apply to all insurance carriers writing policies providing workers' compensation insurance coverage in the Commonwealth of Kentucky, self-insured groups, and any employer carrying its own risk and authorized to self-insure in the Commonwealth of Kentucky; and
5.       Payment by the employer or its payment obligor pursuant to this Order does not waive the employer's right to contest its liability for the claim or other benefits to be provided.
This Order shall be in effect for the duration of the State of Emergency under
Executive Order 2020-215 or until this Order is rescinded by further order or operation of law.

Note the lack of any waiting period and the extensive list of occupations included in the presumption, which goes far beyond employees of a healthcare entity; and first responders (law enforcement, emergency medical services, fire departments).  The order includes what other jurisdictions specify as “essential” occupations including:
  • corrections officers
  • domestic violence shelter workers
  • child advocacy workers
  • rape crisis center staff
  • Department for Community Based Services workers
  • grocery workers
  • postal service workers
  • child care workers

Such lists can be important vehicles to communicate support to these specific workers.  Because workers’ compensation does not typically cover exposure or quarantine for many workers in these occupations, the profile of such presumptions can help ensure wide understanding and greater access to needed support.  On the other hand, specific listings exclude many with similar jobs that don’t fall neatly into the occupational titles defined in the rule, policy or legislation.

Illinois’ Workers’ Compensation Commission also amended its Rules of Evidence [Section 9030.70] (dated April 15, 2020)  as follows:
1) In any proceeding before the Commission where the petitioner is a COVID-19 First Responder or Front-Line Worker as defined in Section (a)(2), if the petitioner’s injury or period of incapacity resulted from exposure to the COVID-19 virus during a COVID-19-related state of emergency, the exposure will be rebuttably presumed to have arisen out of and in the course of the petitioner’s COVID-19 First Responder or Front-Line Worker employment and, further, will be rebuttably presumed to be causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.
2) The term “COVID-19 First Responder or Front-Line Worker” means any individuals employed as police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, correction officers, and the crucial personnel identified under the following headings in Section 1 Part 12 of Executive Order 2020-10 dated March 20, 2020: “Stores that sell groceries and medicine”; “Food, beverage, and cannabis production and agriculture”; “Organizations that provide charitable and social services”; “Gas stations and businesses needed for transportation”; “Financial institutions”; “Hardware and supplies stores”; “Critical trades”; “Mail, post, shipping, logistics, delivery, and pick-up services”; “Educational institutions”; “Laundry services”; “Restaurants for consumption off-premises”; “Supplies to work from home”; “Supplies for Essential Businesses and Operations”; “Transportation”; “Home-based care and services”; “Residential facilities and shelters”; “Professional services”; “Day care centers for employees exempted by [Executive Order 2020-10]”; “Manufacture, distribution, and supply chain for critical products and industries”; “Critical labor union functions”; “Hotels and motels”; and “Funeral services”.
Again, the list of essential or critical work and occupations is very broad but the provision is currently limited for 150 days.

Other jurisdictions are making adjustments through legislation (Alaska Senate Bill 241 , Minnesota HF 4537,  Missouri Emergency rule 8 CSR 50-5.005, Michigan Emergency Rule 684245 7) or executive order (Florida Executive order 20-52, for example). According to press reports, Bills to create presumptions for COVID-19 have also been been introduced in state legislatures in  New Jersey, Pennsylvania, Ohio and Utah (Jim Sams, “Regulators and Lawmakers Introducing Workers’ Comp to COVID-19” , Claims Journal, April 20, 2020)

And without a presumption?

Presumptions may change the profile of the workers’ compensation eligibility and shift the onus of proof (in more adversarial systems) or simplify the adjudication process (in more inquiry-based systems), but determining the “work-relatedness” or causation of a COVID-19 exposure and infection is not automatic. Even the presumptions noted above, factors present in the COVID-19 circumstances make it more likely that workers other than health care workers and first responders will establish valid workers’ compensation claims.   

First, in the early stages of this outbreak (and likely in the post-lockdown stage as well), contact tracing is and will be a key public health priority.  Because of contact tracing, the person-to-person path the virus took to infect a worker may be well documented in a way that is not common in most other infectious disease outbreaks.  If that documentation shows clear work-related transfer, the evidence may well support a valid claim for any resulting disability or death in a particular worker.  An order by public health or a physician for quarantine or hospitalization as a result of contact tracing is significant evidence. If the contact was in the course of and out of the duties of employment, the work-relatedness test for compensation is likely to be established with or without any legislative or policy presumption.

Second, the action of various authorities to name “essential services” creates a differential between workers in those services and those who are not.  The Manitoba Workers’ Compensation Board has the following note on its COVID-19 (Claims) page:

Is COVID-19 work-related?
Most instances of COVID-19 are not work-related. However, the nature and type of work your workers do may put them at greater risk of contracting the virus than the general public. Nurses, health care aides and other direct care providers in hospitals and long-term care facilities are some examples of workers who may be at greater risk. [Emphasis added] 

Clearly, workers deemed essential are at greater risk than those who stay home, work from home or are otherwise deemed non-essential.  That increased risk--with or without any presumption-- is significant evidence to be considered in the adjudication of any workers’ compensation case. 

Unlike many other occupational disease situations more commonly encountered in the workplace, the essential designation is a declaration that the increased risk faced by workers in these sectors is for the benefit of the broader society.  Grocery stores and pharmacies are clear examples.  The declaration of essential services means the check-out associate and the pharmacy aid are by definition at greater risk than others who are directed to work from home.  So are the day-care workers and teachers mandated to work and care for children of workers in essential services. And by extension, the transit worker, building service worker or custodian needed to support these essential workers will also be at greater risk than other members of the workforce or general public. 

A question of proximity

The essential designation may well go by the wayside as economic activity is gradually allowed to re-establish, albeit with new safeguards and limitations. Some occupations will be at elevated risk due to the proximity to others or to toxins essential to their work.   Hairdressers, massage therapists, and estheticians are always in close proximity to their patients or customers.  Plumbers, for example, may well experience elevated risk when working to maintain sanitation systems in residences or institutions where COVID-19 patients are present. Think about those who work in camps, employer-provided bunkhouses, or literally shoulder to shoulder on assembly or processing lines where physical distancing is extremely difficult.  Food production may be essential, so think about the farm labourers in transport vehicles or planting or harvesting machines… and what happens when one person in their workplace contracts COVID-19.   The proximity these workers have to an infected person, waste, or surfaces in the course of their employment puts them at greater risk.  The work-relatedness of disability or death arising from COVID-19 will have to be considered with these factors in mind.  

As an aside, there is at least one source of information that rates occupations against the proximity to others. The Occupational Information Network (O*NET) was developed under the sponsorship of the U.S. Department of Labor/Employment and Training Administration (USDOL/ETA).  This tool allows the user to select and rank occupations against many criteria including many “physical work conditions”. These conditions include exposure to contaminants, infections, radiation, sound, and many others.  For the purposes of this discussion, the important characteristic is “Physical Proximity - To what extent does this job require the worker to perform job tasks in close physical proximity to other people?”.

The O*NET tool allows the user to sort data on any characteristic, occupational code, or occupational title.  For a graphic representation of an analysis using both physical proximity and  exposure to diseases, see Lazaro Gamio,  “The Workers Who Face the Greatest Coronavirus Risk?”, The New York Times (on line), March 15, 2020 . 

For the DM professional, the key point is to not dismiss the possibility of a workers’ compensation claim.  The decision to accept or deny a claim rests with the workers’ compensation insurer or authority but they can only consider a claim if it is submitted to them.

A special concern:  Mental Injuries

Workers’ compensation systems routinely accept psychological impacts as a result of injury.  It is much harder when the mental or psychological issues arise without physical trauma confined to one fortuitous event.  Some mental injury conditions develop over time.  Post-Traumatic Stress Disorder  (PTSD) is one such condition.  Whether from a single incident or a series of events, there is a real risk of work-related psychological injury during this pandemic. 

To adjudicate this, however, most jurisdictions require a formal report from a psychiatrist or psychologist.  These are scarce resources and costly investigations often requiring a course of consultations and testing.  This bottleneck will impact any workers’ compensation claim related to COVID-19 mental injury and just as importantly any other case arising from any other traumatic injury or series of non-traumatic events.  It is important to realize that delay can make the problem worse and threaten the health and life of victims.  Some legislation is broad enough to allow for claims to be decided on the basis of other evidence but many workers’ compensation authorities and legislators will have to grapple with this issue.

The Financial Challenge

Workers’ compensation is a form of insurance.  The transfer of the financial risk of workers’ work-related injury or disease from employer to the insurer in exchange for a premium is essentially how workers’ compensation systems operate.  That premium is intended to reflect the whole cost of claims that will arise in the insured period, typically a year.  Those actual costs related to coverage year injuries will take years to fully develop.  In the meantime, the insurer can invest the value of the expected costs and gain a return on those investments.  That strategy is built into the premium calculation [for most fully capitalized workers’ compensation insurance schemes]. 

The cost of any given year’s injuries is intended to be borne by the employers whose employment gives rise to them.  Workers certainly bare many of the costs of injury and disease (physical impairment and disability, financial losses of wages not covered by compensation, social and mental costs) but employers are the nominal payers of premiums.  Insurers develop premiums based on expected costs including the expected cost of extremely rare events such as earthquakes, long-latency occupational diseases and other disasters. 

For years, the employer cost of workers’ compensation has been falling.  In many cases, the net cost of workers’ compensation to employers who pay premiums has been offset by dividends or discounts fueled by a buoyant investment market.  It has also allowed workers’ compensation insurers to build reserves for risks. 

Many workers’ compensation statutes creating state funds contain provision like this one from the Workers Compensation Act of British Columbia (Section 39(1)(d)):
39   (1)For the purpose of creating and maintaining an adequate accident fund, the Board must every year assess and levy on and collect from independent operators and employers in each class, by assessment rated on the payroll, or by assessment rated on a unit of production, or in a manner the Board considers proper, sufficient funds, according to an estimate to be made by the Board to…
(d)provide a reserve to be used to meet the loss arising from a disaster or other circumstance which the Board considers would unfairly burden the employers in a class;

Workers’ compensation insurers will receive claims for COVID-19 in the current coverage year.   The full costs associated with those claims will take years to develop.  The liability associated with the claims incurred this year may be covered in part by reserves and in part by increased premiums in future years. 

Concluding comments

The operational, policy and financial challenges resulting from the COVID-19 pandemic will be significant for workers’ compensation policy makers, insurers and regulators.  Employers who survive the downturn will likely have lower payrolls and likely face higher workers’ compensation premiums.  Investment markets may take a long time to recover and returns may fall below the required level for existing workers’ compensation claims liabilities. 

Injured workers from previous years will still need workers’ compensation services.  Vocational rehabilitation and return-to-work assistance are likely to be challenged by high unemployment with fewer job opportunities.  Competition for scarce medical and psychological resources may extend recoveries and add to claim costs.  Workers with accepted claims from the COVID-19 pandemic will also have extended recoveries. Some are likely to have permanent disabilities.  And the families of workers who die as a result of work-related COVID-19 infection will also need the financial and other supports that are part of what workers’ compensation was designed to provide.  Hopefully, workers’ compensation will be up to these challenges. 

The bottom line for those working in DM, HR or RTWC is this:   what’s happening in the workers’ compensation systems you deal with may have a big impact on how claims for COVID-19 and any other work-related issue are handled.  Policies and presumptions may alter timelines and processes  but workers’ compensation entitlements and responsibilities continue to apply for COVID-19 as they do with other work-related injury, disease and death cases. Workers who may have a case of work-related COVID-19 may have entitlement to workers’ compensation.  Making sure employers fulfill their duty to report and workers or their families may have access to entitled compensation and benefits remain part of the DM professional’s responsibilities.