I’ve been getting lots of questions about work-related COVID L&I claims. How do I get compensation if I caught COVID at my workplace? What if my family member died after getting COVID at work? Unsurprisingly, lately I see more and more L&I claims involving workers that got the Coronavirus at work. And even more sadly, in some cases, employees passed away after contracting COVID at their workplace. Let’s talk more about an L&I claim for COVID. It’s a complex topic.
L&I claim after contracting COVID at work
The Department of Labor and Industries (L&I) is processing many COVID-19 L&I claims on the basis of the Health Emergency Labor Standards Act (HELSA). Interestingly, this Act became law on May 11, 2021. Furthermore, according to the Act, for frontline workers, there’s a presumption that contracting any infectious or contagious disease like COVID during a declared public health emergency constitutes an occupational disease under the Industrial Insurance Act.
However, a worker must meet the legal definition of frontline worker to be eligible for the presumption. On top, workers and employees must provide verification that they contracted the infectious disease. Additionally, HELSA imposes some requirements from employers. For example, requiring larger employers to notify L&I if an outbreak occurs involving 10 or more workers. There are also prohibitions on discriminating against high-risk workers, and a duty to notify workers of known exposure to the disease.
COVID and Coronavirus at work
The occupational disease presumption for frontline workers is rebuttable. Employers can rebut it by showing:
(a) That the exposure occurred from some other employment or non-employment activities; or
(b) That just prior to contracting the disease, the worker was working from home, on leave, or a combination of the two, for the period of quarantine consistent with state and federal guidance.
L&I has been allowing the vast majority of COVID workers’ compensation claims it receives, under HELSA. Consequently, some employers started appealing these Coronavirus workers’ compensation claims. On appeal, these employers will have the burden of proving that one of the rebuttal circumstances applies.
COVID L&I claim appeal and Board of Industrial Insurance
It feels like COVID has been around for a very long time. However, appeals involving COVID cases under HELSA are still very new. We don’t yet know how the Board of Industrial Insurance Appeals (BIIA) and higher courts will interpret HELSA and apply it to the fact of each case. There are going to be several key issues in these COVID L&I claim appeal instances. Lack of testing available in the early months of COVID is one. Also, variable reliability of COVID tests is another. On top, there’s non-work activities and interactions. Finally, there’s the question of whether workers meet the legal definition of frontline workers.
The fact that people had wildly different experiences of severity and recovery from Coronavirus will surely lead to additional complexities. I expect these complexities to arise in both COVID L&I claim appeal and overall COVID claim administration. Sadly, cases involving workers who died after contracting COVID are likely to be highly contested given the significant benefits that could become available to survivors and dependents.
What’s next for HELSA and COVID claims?
We cannot fully predict how HELSA will be interpreted and how appeals to COVID claim allowance will play out. However, what is certain is that these cases are being appealed. They are being tried by attorneys with vast skill and experience in workers compensation representing employers. Workers, survivors and their dependents who are facing an employer appeals to claim allowance should take the time to consult with an experienced plaintiff-side workers’ compensation attorney.