Workers’ comp option discounted

Covid-19 missed-work claims likely won’t fly, 2 officials say

An employee who catches covid-19 at his workplace can file a workers’ compensation claim, the governor said. But such a claim would be almost impossible to win, the president of the state chamber of commerce and the attorney for the Arkansas AFL-CIO said.

Gov. Asa Hutchinson was asked May 8 what compensation employees are entitled to if they go back to their jobs and contract the disease. The question came during a daily pandemic briefing by the governor. State closings of salons and dining in at restaurants were relaxed earlier that week.

“They would be covered by workers’ compensation if there’s a causal connection between their employment and their contraction of the virus,” Hutchinson replied.

“I’ve talked to the head of the Workers’ Comp Commission and reviewed that with him, and that’s our consensus and that’s what I understand the law allows,” the governor said.

“Causal connection” is a legal term meaning, in this context, that the worker would have to prove by a preponderance of the evidence that he contracted the disease at work.

Randy Zook, president of the Arkansas State Chamber of Commerce, and Mark Martin of Fayetteville, attorney for the AFL-CIO, said legal standard exists for any work-related disease or injury subject to a

workers’ compensation claim.

Zook and Martin said proving such a claim would be a practical impossibility with covid-19. A microscopic virus already circulating in the general population causes the disease. As of 5 p.m. Friday, covid-19 in Arkansas had killed 98 people, and the state had 4,463 confirmed coronavirus cases. The number of Arkansans with the disease as of midday Friday was 975 with 65 of those in hospitals.

“I don’t know a workers’ comp attorney who would take a covid-19 case,” Martin said. “You’d have to prove by a preponderance of the evidence that the disease was contracted at work, and the odds of that are minuscule.”

That would remain true even if the business in question was a known covid-19 hot spot, he said.

“My executive order clarifies some ambiguities in light of covid-19,” Hutchinson said.

“There must be a causal connection between the contraction of covid-19 and the workplace. That is the law, and it should remain so. I appreciate the Arkansas Workers’ Compensation Commission’s counsel in ensuring future claims will comply with what is permissible under our worker compensation laws.”

The workers’ compensation system is a form of insurance that protects employees and employers. Workers receive monetary compensation for injuries received or diseases contracted on the job. The system pays employees for lost wages, medical bills and reduced earning potential.

Employers are protected from lawsuits and bear the costs of the system.

The program is administered by a state commission, which has three members who settle disputes among claims. Each commissioner serves a six-year term.

Zook said covid-19 claims wouldn’t overburden the state’s compensation system, in his opinion.

“You would never be able to prove whether the disease was contracted at work, at home or at church,” he said. “Proving where you got it would be nearly impossible.”

A business that doesn’t comply with the guidelines of the federal Centers for Disease Control and Prevention or those of the Occupational Safety and Health Administration to stop the disease’s spread would be open to other forms of liability, including lawsuits, he said.

“Businesses don’t have a license to operate and ignore safety,” he said.

Martin said transmission of the disease is still possible whatever safety measures are in place. And without workers’ compensation, there’s no other recourse, he said.

Hutchinson’s remark on compensation came three days after the chamber appealed to him to issue an executive order and call a special legislative session to protect businesses from covid-19 lawsuits.

“Arkansas businesses are in survival mode, yet they have stepped up in amazing and heroic ways to respond to the crisis,” said the May 5 letter to the governor. “Those efforts should not lead to an onslaught of class actions and private rights of action seeking to capitalize on this crisis. This state cannot sustain such further damage.”

The chamber’s letter thanked the governor for an executive order granting protection for health care and emergency providers.

“However, greater protections are needed,” the letter said. “To encourage and support critical efforts, the state needs to provide assurances of immunity to all industry sectors providing critical services, goods and facilities.”

The letter doesn’t address what those sectors are.