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. 


Monday, March 23, 2020

How prepared are workers’ compensation systems for COVID-19?



Regardless of the workers’ compensation model (private insurance, competitive state fund, exclusive state fund), every insurer has to prepare for the unexpected. Afterall, insurance is the transfers the financial risk of rare but costly events from the insured to the insurer.  As noted in my last post, the COVID-19 event most certainly is a rare event and just as assuredly will result in accepted workers’ compensation claims.  How each workers’ compensation insurer will fair in this reality depends greatly on past actions to:

  • Understand the risk
  • Plan for the financial consequences, and
  • Prepare for the operational impact


Like all large business, workers’ compensation insurers identify their risks through environmental scanning, SWOT analysis, and risk ranking exercises.  Then comes the hard part:  putting in place the financial and operational contingency plans to ensure the resilience of the organization at a time it is needed most.  Low probability but high impact events like the COVID-19 pandemic may be identified but what happens next depends on the leadership.   

Corporate planning exercises are internal to the organization and not necessarily subject to public scrutiny making it hard to know how many workers’ compensation insurers saw COVID-19 coming and what, if anything, they did to prepare. Identifying past events and their impacts—how well we have learned from past events- is critical to such preparations.

The “Unknown” occupational disease risk in workers’ compensation

When workers’ compensation systems started a century ago, the focus was “industrial accidents” .  Few “industrial diseases” were included in early legislation and typically by industry or process ( things like lead poisoning in smelting or sulfur poisoning in coal mining) and not diseases.   The “Spanish Flu” pandemic of 1918 provided ample proof that a pandemic virus was a real risk to workers particularly in healthcare centres. 

The formulation of workers’ compensation legislation in most jurisdictions prevented workers’ compensation systems from accepting claims for previously unknown or scheduled diseases.  This limitation was noted at the time.  For example, one jurisdiction’s annual report noted:

As an example of the limitations of the Act, it may be mentioned that during the severe epidemic of Spanish influenza in the fall of 1918, many inquiries, telephonic and otherwise, were made as to whether the influenza was covered by the Act, some of the inquirers claiming that it was due to their daily work. There could, of course, be only one answer to these inquiries, that the influenza, though a great misfortune, could not by any stretch of imagination be considered as an accident arising out of employment.
[Source: Second Annual Report of the Workmen’s Compensation Board of the
Province of British Columbia For The Year Ending December 31st 1918, Page U11]
As the tone of the passage suggests, the worker’s compensation authority saw the lack of coverage as a gap in the legislation.  The then chairman wrote:

In the closing months of the last year we have been compelled to reject a number of claims arising out of the influenza epidemic, in which mothers with small children made application for pensions. One case was particularly painful. When informed that we must reject her claim, the mother of eight small children asked us in desperation: "What am I to do?" We were unable to answer. She withdrew from the Board room accompanied by two of her frightened children clinging to her skirts, and one in her arms, to answer the question as best she could. These experiences also compel us, at the risk of being censured for going outside of our sphere, to call attention to the enormous wastage of life, health, and happiness through failure or inability to obtain medical attention.
[Source:  1918 Annual report ibid., page U47]

Over time, most workers’ compensation systems adapted to include coverage for occupational diseases.  The Spanish flu killed 675,000 in the US (population in 1918 was 103 million) and an estimated 40 million worldwide (when the population was about 1.8 billion).
From a workers’ compensation perspective, the possibility of a new disease suddenly emerging to injure and kill workers in the course of their employment was no longer an unknown risk.

“Known unknowns”

The idea that a new work-related disease could emerge was proven out when in other serious outbreaks less deadly than the Spanish influenza pandemic.   The 1957-58 “Asian flu”, for example,  infected 20% to 40% of the population but the death rate was much lower (excess deaths estimated at 66,000 in the US).  Other influenza viruses have spread quickly around the world, often resulting in harm to workers particularly those in the medical field where close contact lead to transmission and illness.  These include the “Hong Kong flu” of 1968, various strains of “Avian flu” and “Swine flu”.
[I've included a list of notable pandemics from Madhav N, Oppenheim B, Gallivan M, et al. Pandemics: Risks, Impacts, and Mitigation. In: Jamison DT, Gelband H, Horton S, et al., editors. Disease Control Priorities: Improving Health and Reducing Poverty. 3rd edition. Washington (DC): The International Bank for Reconstruction and Development / The World Bank; 2017 Nov 27. -Table 17.1, Chapter 17] 

Serious illness from pandemic virus became a serious topic in “business continuity” and “disaster management” in the corporate and government world in the late 1990s.  Concern over Y2K, increasingly serious natural disasters such as hurricanes, and disruptions through terrorism such as the September 11th attacks pushed the evaluation of risk from the academic classroom and actuarial backrooms to corporate boardrooms.  Annual reviews of risks and business continuity plan testing became part of the corporate culture.  In hospitals and government offices, contingency plans were developed for many risks but one epidemic helped spur some workers’ compensation systems to take specific action to prepare for the “know unknown”:  the emergence Severe acute respiratory syndrome (SARS).

The 2003 SARS outbreaks in Ontario and British Columbia in particular provide hard lessons on the human and financial cost of work-related disease.  I attended a policy conference a few years later where one presenter noted that more than 400 claims were received by the WSIB for SARS exposure,  more than 160 for SARS illness, and two fatalities.  In a reflection of the risks associated with working at the front lines of medicine,  98% of accepted claims were from women in healthcare.  If you are unfamiliar with what happened during the SARS outbreak, you may find the following reference informative:
Low DE. SARS: LESSONS FROM TORONTO. In: Institute of Medicine (US) Forum on Microbial Threats; Knobler S, Mahmoud A, Lemon S, et al., editors. Learning from SARS: Preparing for the Next Disease Outbreak: Workshop Summary. Washington (DC): National Academies Press (US); 2004. Available from: https://www.ncbi.nlm.nih.gov/books/NBK92467/
Anticipating the next pandemic

Workers’ compensation insurers were certainly aware of the risk of pandemics.  The risk was publicly acknowledged and actively planned for.  One annual report noted:
In 2003, Canadians saw Severe Acute Respiratory Syndrome (SARS) strike with devastating human economic costs. In 2004, the avian influenza virus put workers at risk and resulted in millions of birds being destroyed. In both cases, the original source of human infection was an animal. The potential threat posed by diseases crossing over from animals has been identified as a serious risk to humans by the World Health Organization. These “zoonotic” diseases have had very limited health impact on B.C.workers to date; however, in the event of an outbreak of a highly contagious disease, front-line caregivers may be at increased risk. These diseases are within the scope of coverage by the Workers Compensation Act if the worker contracts the disease in the course of, and arising out of, duties related to his or her employment.
WorkSafeBC,  2004 Annual Report and 2005-2007 Service Plan

In corporate planning and business continuity departments, pandemic planning was on the agenda.  Those charged with these tasks amplified the messages from experts.  The many public appearances and analysis of Michael T. Osterholm over the last twenty years, the assessments of the World Health Organization, and the rankings of the World Economic Forum may not have been on everyone’s reading list but business continuity planners and disaster management professionals certainly understood the risk.   “Team sites” were prepared, operational impacts and costs were estimated in some workers’ compensation systems.  Risk ranking exercises in finance departments often included the pandemic risks and actions were taken in many workers’ compensation insurers to operationally and financially manage (or at least buffer) the impact of the known pandemic risk with an unknown arrival date. 

A Current Risk

To be clear, pandemic risk has been on the agenda for years.  Researchers have raised the alarms but not every government or insurer was listening.  In hindsight, these warnings seem eerily prescient.  For example, this top finding from the Global Health Security Index [October 24, 2019] was alarming—at least to those who read them:

Countries are not prepared for a globally catastrophic biological event, including those that could be caused by the international spread of a new or emerging pathogen or by the deliberate or accidental release of a dangerous or engineered agent or organism

The World Economic Forum noted the risk of pandemic in many of its reports over the last fifteen years. Most recently, its Global Risk Report 2020 placed infectious diseases among the top ten impacts and noted:

Global health security risks. Considerable progress has been made since the Ebola epidemic in West Africa in 2014–2016, but health systems worldwide are still under-prepared for significant outbreaks of other emerging infectious diseases, such as SARS, Zika and MERS. [P. 76]

Major reinsurers like MunichRe  and SwissRe identified the risks and set up their own units or plans for pandemics and cooperated with the World Bank to launch the Pandemic Emergency Funding Facility in 2016.  Other large reinsurers certainly identified the risk.  The consequences of higher death rates across all demographics during a largescale pandemic on life insurance underwriters and government social insurance as well as on workers’ compensation insurers. Reinsurers and large insurers often provided tools and assessments to help insurers identify the risk and make plans accordingly.  [see Aon’s  https://www.aon.com/InfectiousDiseaseResponse/default.jsp for example].
For any insurer, these assessments made the risk clear.  How each prepared in light of this information will determine how well they will weather the consequences during of the current pandemic. 

Preparing for the inevitable…

Operational contingency plans often included building system access and redundancies.  If one office or headquarters was quarantined or significant numbers of staff were disabled in a particular centre, operations could continue elsewhere.  The ability of workers’ compensation insurers to shift to work-from-home models were developed and tested.  These operational contingencies were not necessarily in anticipation of pandemic or local outbreak but based on more generally on the availability of staff and facilities after or as a disruptive event unfolds.  Scenario planning included a variety of possible disruptions from earthquakes to an outbreak and even scenarios that may have sounded farfetched at the time:
Due to the cruise ship, cargo and air traffic through Vancouver, it is possible that emerging diseases will be identified here in BC and that workers in health care, transport and hospitality will develop compensable disease.
[WCB of BC,  “Future Risks: Issue specific environmental scan” 1998].

As with most insurers, workers’ compensation insurers create “reserves” for risks like these.  Occupational disease reserves and disaster reserves are commonly developed and funded.  The robust market returns and extended economic growth cycle since the Great recession (2007-2009) have allowed reserves to be built up for many insurers.  Whether present reserves will be sufficient is an open question.  No one yet knows the extent to which work-related COVID-19 will result in workers’ compensation claims but injury, illness and fatality claims arising from this pandemic are already entering workers’ compensation systems world wide.

Aside from reserves, funding strategies may include reinsurance. Reinsurance is a way for a firm or insurer to share the financial risk of large losses.  You can think about it as insurance for insurers.  As a strategy, it may insulate any one insurer but that assurance comes at a cost.  Premiums and deductibles may be high.  Just how each insurer manages its pandemic risk will vary.  Whether to establish reserve, reinsure, do both… or neither, is a choice for any risk.  Now that this particular eventuality risk has become manifest, the consequences of those choices will begin to be reflected in financial statements. 

Enter the Pandemic and the need to adapt

The COVID-19 pandemic is still unfolding and its impact on the economy and insurers is uncertain at best.  The impact on workers battling the pandemic, supporting the ill, and keeping the essentials of society running is unknown. 

In this pandemic, quarantine is becoming a bigger issue.  The lag in disease development and the potential for asymptomatic and pre-symptomatic individuals make quarantine and isolation a priority especially for first responder, healthcare workers and others providing direct care to those who are ill or vulnerable particularly the elderly.  Large numbers of first responders and healthcare workers are being sidelined because of work exposures.  Quarantine is for the well exposed but not infected.  The period of quarantine may mean lost wages and psychological pressure on workers and their families. 

As I noted in my last post, quarantine is not typically compensated by workers’ compensation legislation.  This may be changing. Washington state “is taking steps to ensure Workers’ Compensation protections for health care workers and first responders who are on the front lines of the COVID-19 (coronavirus) outbreak.”  The news release states:

L&I [Washington State’s Department of Labor and Industries is immediately changing its policy around workers’ compensation coverage for health care workers and first responders who are quarantined by a physician or public health officer. Under the clarified policy, L&I will provide benefits to these workers during the time they’re quarantined after being exposed to COVID-19 on the job.https://www.governor.wa.gov/news-media/inslee-announces-workers-compensation-coverage-include-quarantined-health-workersfirst 
Workers’ compensation systems have expanded their coverage over the last century to include more occupational disease.  Science has led us to better understand the work-relatedness of occupational illnesses and workers’ compensation systems have adapted to the benefit of both workers and employers.  Their varying degrees of preparedness for this pandemic will be revealed over time but workers and employers will undoubtedly be relying on workers’ compensation systems well after the pandemic peaks. Any shortcomings in their preparation should not jeopardize the benefits and supports promised by workers’ compensation laws. Those with work-related illness and first responders forced into quarantine by medical order need to be supported financially regardless of past decisions or policies.   

Will there be a significant cost?  Of course. Medically ordered quarantine, however, is necessary to protect others on the front line and the rest of us.  These workers and their families are already sacrificing so much; they should not have to suffer lost wages, use vacation time or consume sick leave because of their dedication in spite of the risk.  It is not as if they can quit their jobs and be free of the quarantine.  They are, for all intents and purposes, totally disabled from work by virtue of their exposure and the medical risk that carries for everyone.

Workers’ compensation has evolved its coverage in the past.  Perhaps now is the time for a further evolution along the lines proposed in Washington state.



Saturday, March 7, 2020

Can a worker claim workers’ compensation for COVID-19 exposure, illness or quarantine?


[The following is a general response to questions from students in workers’ compensation, disability management, and workplace insurance courses.  The law and policy will vary by specific jurisdiction].

The emergence of the novel coronavirus (COVID-19), has prompted concerns around the world.  While prevention, control, and treatment questions top the list, workers’ compensation questions are being raised.  The most common question: Can a worker with a confirmed case of COVID-19 illness successfully claim workers’ compensation?  The short answer is “Yes”.  Getting to that short answer, however, takes some explanation, beginning with the determination of the work-relatedness of the disease.   

Work-relatedness of disease

For COVID-19 or any other disease-causing virus, the possibility of a workers’ compensation claim depends on the wording of law and policy in the jurisdiction.  Many diseases are scheduled as “occupational diseases” in workers’ compensation law or defined in policy.  Occupational, work-process, or industrial exposure to known, biologically-active agents including viruses may be defined as the presumed cause of specific disease (lead poisoning in smelter workers, chicken pox contracted by a teacher from a student in their care, for example).  The presence of disease and the history of exposure in the occupation or industry defined typically establishes a presumptive (although rebuttable) work-related cause, opening the door to workers’ compensation claims for medical costs, rehabilitation, financial compensation, survivor benefits, and death benefits. 

A novel disease will not have been previously scheduled as an occupational disease in legislation or listed in policy. In such cases, it must be determined whether the disease is work.  If the nexus between work and resulting health impact can be shown, then the basis for a workers’ compensation claim can be established.

The test to establish work-relatedness, or causation, of a disease varies across jurisdictions. For example, in British Columbia, the test for work-relatedness is “causative significance”, meaning the worker’s employment must have been of causative significance in producing the disease. To satisfy the causative significance test, the worker’s employment must have been more than a trivial or insignificant aspect.

A few workers’ compensation jurisdictions have a more stringent test, often referred to as “predominant” or “major contributing cause”.  In Oregon, the condition that stems from the injury or disease rather than on-the-job injury or exposure is the basis making a claim; work has to be a “a major contributing cause” of a condition, defined as a cause contributing more than 50 percent to an injured worker's disability or need for treatment. 

COVID-19 appears to spread most easily to those who come into “close contact” with the virus.  The US CDC defines close contact for healthcare workers as follows (see footnote 2 in CDC’s FAQs for  Coronavirus Disease 2019 (COVID-19):

a) being within approximately 6 feet (2 meters) of a COVID-19 case for a prolonged period of time; close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case, or

b) having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on)
  
For healthcare workers, ambulance drivers, physicians treating COVID-19 patients, the applicable work-relatedness test may be more easily established given the increased likelihood of exposure

Less obvious but still likely to meet the work-relatedness test, are bus drivers transporting quarantined travelers, cleaners brought in to disinfect facilities, or morticians dealing with the fatalities of the disease.  Beyond occupations and industries that make the likelihood of exposure and infection higher than that of the general public, establishing work-relatedness may be difficult once the virus is not traceable from person to person. 

Standard of proof

Workers’ compensation jurisdictions vary regarding the standard of proof necessary to establish the issues in question, such as causation.  Unlike criminal law where the standard of proof is “beyond a reasonable doubt”, most workers’ compensation statutes rely on a “balance of probabilities” standard:  if it is more likely than not that the disease is work-related, then the claim is accepted for workers’ compensation purposes.

Some workers’ compensation jurisdictions, like British Columbia, have a slightly lower “evenly weighted” standard: if the evidence on an issue is evenly weighted, the finding must favour the worker. This means that a claim is accepted if it is at least as likely as not that the disease is work-related.

Establishing work-relatedness of disease

Note that evidence a worker has the disease is not evidence the disease is work-related.  A valid, accurate lab test may well confirm the presence of COVID-19 but not it’s work-relatedness.

In the early stages of epidemiological investigation, the connection between work and the diagnosis may be established by public health officials and epidemiologists tracing the source of the infection and those who came in contact with the disease.  In the case of a public health worker contracting the virus after exposure to infected individuals, that work-related connection is pretty obvious in the early stages of an outbreak.  On the face of it, the public health authority’s epidemiological reports would likely be sufficient evidence for satisfying the work-relatedness test.  Scheduled occupational disease provisions or statements in policy may allow the presumption of work-relatedness in the absence of information to the contrary without need for detailed investigation in every single instance. 

The challenge for many workers outside scheduled or policy-defined industries or occupations is to establish that work-relatedness.  Once the disease is more generally spread in the community, establishing the work-relatedness may be much harder to do.  Is the worker ill with an infection confirmed as COVID-19?  Did the exposure resulting to the infection arise in the course of employment and out of the duties associated with that work, or was the exposure from the use a surface on public transit, an unshielded cough of passerby on a street, or from another vector of disease (including our own children)? 

The adjudicative decision for a workers’ compensation claim will become more complex as the risk differential between work and non-work exposures equalize. The onus of proof in inquiry-based workers’ compensation systems (such as British Columbia and Ontario) remains with the insurer; in adversarial systems (most US jurisdictions), the onus may fall more heavily on the worker.  In either case, the complexity of determining the work-relatedness question can mean extensive investigation, cost and delay in reaching a decision.

Exposure is not disease…  Or disability

All of us are exposed to agents of illness and disease in our lives and work but exposure does not necessary lead to disease.   A healthcare worker attending patients with an active case of COVID-19 disease, for example, may be in close contact for varying durations of exposure but never develop the disease.   Personal protective equipment (PPE), training, and adherence to protocols are specifically designed to counter the increased risk in clinical settings where healthcare workers are exposed to severely ill patients.  

Not all those exposed to the COVID-19, even in close contact such as a quarantined residence, will not necessarily become infected with the COVID-19 virus.  Reportedly, a couple confined to the same cruise ship cabin, one partner can test positive for the disease while the other does not.  For COVID-19, as for many other agents of illness and disease, exposure alone does not guarantee disease and/or disability.   

Even in cases where exposure results in a positive test for COVID-19, not everyone develops disabling symptoms. It is not clear yet why some people who test positive seem unaffected by COVID-19.  Children and some adults have tested positive for COVID-19 but show no signs of illness or disease.  In others, the symptoms may be mild and dismissed as a minor cold.

From a workers’ compensation perspective, this is an important point:  exposure is not disability.  Exposure may lead to disease and disease may be disabling.  Where exposure is not followed by disease, and or disability, a claim for any workers’ compensation because of COVID-19 exposure would unlikely succeed; no medical treatment would be required and there is no impairment that makes the worker incapable of work.  Documentation of the exposure is always important but unless the disease develops, it is unlikely any claim filed would be accepted by the workers’ compensation insurer. 

At this point, testing for COVID-19 is a public health issue.  At some point, credible diagnostic tests may be offered through medical labs.  Diagnostic tests are generally not considered as medical expenses under a workers’ compensation claim.  At present, there is no vaccine against this disease.  When one is available, the cost would not normally be covered by workers’ compensation. 

What about asymptomatic disease cases?

A case of COVID-19 may be detected in an asymptomatic person.  The person may or may or may not develop symptoms but may be able spread the disease to others.  A confirmed case in an asymptomatic person may be subject to quarantine or isolation. 

Let’s clarify those terms:  Quarantine restricts the movement of well persons who may have been exposed to a communicable disease.  Isolation separates an ill person from those who are healthy. 
In a confirmed work-related COVID-19 exposure where the worker tests positive for the virus, the worker would likely be isolated and monitored in isolation.  Once the virus is no longer detected, the individual is no longer infectious.  Barring any necessary recovery time, the worker can safely return to work.

In this case, all the necessary elements of a claim may be present: the person is a worker, the exposure is work-related, and disease is confirmed.  Work is causative of harm.  The body reacts but at a level that is asymptomatic.  But for the infectious nature of the disease, there is no impairment.  With no symptoms, there are no medical expenses.  There is no treatment for COVID-19, so no medical treatment expenses are incurred.  

Assuming there is no work the worker could do while in isolation, the period where the worker is unable to earn because of the illness (continued detection of the virus) may result in earnings loss.  A workers’ compensation claim for lost earnings may be defensible for an asymptomatic worker with work-related COVID-19.

Suppose a treatment is developed that hastens the ability of the body to fight off the virus and shorten the course of illness.  If such a treatment existed, its cost might be accepted as a medical expense in an accepted workers’ compensation claim made by a worker with test-confirmed COVID-19 but no symptoms.   

Accepted COVID-19 workers’ compensation claim:  what is covered?

An accepted workers’ compensation claim opens the door to payment for medical expenses, hospital costs, prescriptions, rehabilitation and compensation for lost wages. In some cases, recovery will be protracted.  It is not clear if permanent disability results but past experience with SARS would suggest that permanent disability may occur and compensation may be payable.

If the disease is work-related and COVID-19 results in death, workers’ compensation may provide payments to survivors and dependents as well as funeral or burial costs.

What about quarantine?

According to news coverage, some workers have been quarantined due to exposure to COVID-19 in the course of their employment.  Some workers caught in a quarantine of a ship, hotel, or other facility may continue in their employment duties and receive wages for their work; others such as the flight crew of an evacuation mission may be quarantined with their passengers for the duration of the quarantine period.  Can quarantined workers claim workers’ compensation for their lost wages?

Workers’ compensation claims are generally based on disability not exposure.  In most cases, lost wages due to quarantine would not be considered compensable under a workers’ compensation claim.  Employer HR policies or collective agreements may have provisions to use sick leave or vacation time for quarantine cases.  Employers may also continue to pay workers either on the basis that adhering to the quarantine is an implicit work-related assignment or in recognition of on-line work they may be able to do during the quarantine.

Quarantine duration periods imposed for COVID-19 are typically around the 14-day time frame.  Quarantines may be recommended or imposed on persons with exposure.  Given the possibility of spreading the disease while asymptomatic, the 14-day time frame following exposure is intended to contain the disease.  Not every employer offers sick leave and even if sick leave is a provision, not all employees will have sufficient sick leave to cover a 14-day absence.  Even if the quarantine is work-related, there is no typically no basis for a workers’ compensation claim.

Psychological impacts?

Think of the dedicated health care workers coping with the onslaught of sick patients or the field workers in public health visiting the ill or dying in the community during a pandemic.  Consider a crew member responsible for serving quarantined guests, some of whom eventually test positive for COVID-19 and are removed to a hospital for treatment.  The psychological impact might be significant even if these workers do not contract the particular virus themselves.  It is conceivable that workers may file claims related to COVID-19 based on mental injuries despite the absence of the disease itself. 

Jurisdictions vary in how mental injuries are adjudicated within the workers’ compensation framework. Most accept mental injury that is the sequelae or consequence of a compensable work-related injury or disease.  Workers’ compensation jurisdictions may also accept a claim for a work-related mental injury as the primary condition, provided certain requirements set out in each jurisdictions’ law and policy has been met.

Mental injury may arise independent of direct physical harm and may take months to develop and be diagnosed.  The stress of being confined with others particularly if others in the group develop the disease may contribute to anxiety and depression of others in quarantine.  The longer-term impacts may include Post Traumatic Stress Disorder (PTSD).  A recent review found quarantine could have negative consequences [see Samantha KBrooks, Rebecca K Webster, Louise E Smith, Lisa Woodland, Simon Wessely, NeilGreenberg’ Gideon James Rubin, “The psychological impact of quarantine and howto reduce it: rapid review of the evidence”, The Lancet, OnLine First,February 26, 202].   To date, there are no published reports of workers’ compensation claims for mental injury being accepted.

Employer responsibilities

Employers are responsible for the health and safety of their workers.  That general duty does not diminish in the event of an outbreak or pandemic.  The duty to plan for and protect workers is not limited to the healthcare system.  Retail, factories, banks, arenas, restaurants and offices need procedures and plans in place.  Supplying a box of face masks and a container of disinfecting wipes may be appropriate but are insufficient in most cases to discharge an employer’s duty.

Employers need to ask fundamental questions about what will happen in the event of an infectious disease outbreak.  Will workers be able to work from home?  If certain workers are quarantined, who will do their necessary work?  Have they been trained?  Is their safety likely to be at risk?  These questions are just as valid for small businesses as they are for large ones.  The prospects of a widening prevalence in the community increases the urgency to plan, acquire protective equipment, establish procedures, and prepare.   

So, in addition to “wash your hands, wash your hands” and “don’t touch your face”, take the time to think about the implications an infectious disease like COVID-19 might have in your workplace.  If you are an employer,  work in human resources, or serve on a joint health and safety committee, look at your plans, update your policies, check with your workers’ compensation and disability insurance providers—they will likely have resources to help you plan and prepare.  Whether COVID-19 or a future virus spawns a pandemic, your preparation will be worth it.

Term
Practical Definition for Workers’ Compensation COVID-19 Claims Purposes
Asymptomatic
Not having or showing signs of illness
Case
An instance of COVID-19 infection (not the person)
Exposure
Direct or close contact with an infectious agent (such as bodily fluids from a person with active viral disease)
Isolation
Separation of an ill person or persons with a communicable disease from those who are healthy with the purpose of limiting the spread of the disease
Quarantine
Separation and restriction of movement of a well person or persons who may have been exposed to a communicable disease with the purpose of limiting the spread of the disease (and detect if illness develops).
Symptomatic
Having or showing signs of illness