COVID-19 he­roes must jump through hoops for work­ers’ comp

Enterprise-Record (Chico) - - NEWS - By Ri­cardo Alonso-Zal­divar

WASH­ING­TON » Lauded for their ser­vice and hailed as ev­ery­day he­roes, es­sen­tial work­ers who get the coro­n­avirus on the job have no guar­an­tee in most states they’ll qual­ify for work­ers’ com­pen­sa­tion to cover lost wages and med­i­cal care.

Fewer than one-third of the states have en­acted poli­cies that shift the bur­den of proof for cov­er­age of job-re­lated COVID-19 so work­ers like first re­spon­ders and nurses don’t have to show they got sick by re­port­ing for a risky as­sign­ment.

De­bate over work­ers’ comp in the states is part of a much larger na­tional dis­cus­sion about li­a­bil­ity for virus ex­po­sure, with Repub­li­cans in Congress seek­ing a broad shield for busi­nesses in the next coro­n­avirus re­lief bill.

And for most em­ploy­ees go­ing back to job sites as the economy re­opens, there’s even less pro­tec­tion than for es­sen­tial work­ers. In nearly all states, they have to prove they got the virus on the job to qual­ify for work­ers’ comp.

Nurse Dori Har­ring­ton of Manch­ester, Con­necti­cut, said she got COVID-19 car­ing for in­fected pa­tients at a nurs­ing home, with lim­ited pro­tec­tive gear. Har­ring­ton was se­verely ill and missed five weeks of work, yet her work­ers’ comp claim was ini­tially de­nied on grounds that her dis­ease was “not dis­tinc­tively as­so­ci­ated with, nor pe­cu­liar” to her job.

“It’s great to be ap­pre­ci­ated, but we need to be taken care of, too,” said Har­ring­ton, who even­tu­ally won her claim with union help. “No­body should have to fight to be taken care of when they were sim­ply do­ing their job tak­ing care of other peo­ple. It’s ob­nox­ious to me.”

Work­ers’ com­pen­sa­tion is not health in­sur­ance, or an un­em­ploy­ment ben­e­fit. The $56 bil­lion, state-level in­sur­ance sys­tem is one of the na­tion’s old­est forms of a so­cial con­tract. In ex­change for cov­er­age, work­ers give up the right to sue their em­ploy­ers for job-re­lated harms. Em­ploy­ers pay pre­mi­ums to sup­port the sys­tem. Com­plex rules dif­fer from state to state.

Deal­ing with job-re­lated in­juries is fairly straight­for­ward, but dis­eases have al­ways been trick­ier for work­ers’ comp, and COVID-19 seems to be in a class of its own.

“You don’t know per se where you in­haled that breath whereby you be­came in­fected,” said Bill Smith, pres­i­dent of the Work­ers’ In­jury Law & Ad­vo­cacy Group, or WILG, a pro­fes­sional as­so­ci­a­tion of lawyers rep­re­sent­ing work­ers.

You can still reach a log­i­cal con­clu­sion, says Univer­sity of Wy­oming la­bor law pro­fes­sor Michael Duff.

“When you are talk­ing about cer­tain kinds of front­line work­ers, out in the trenches, day in and day out, that per­son starts to look like the coal miner who is rou­tinely ex­posed to a haz­ardous health con­di­tion be­cause of their work,” he ex­plained.

Think hos­pi­tal and nurs­ing home clin­i­cal staff, first re­spon­ders, and meat pack­ing work­ers, among oth­ers.

Ac­knowl­edg­ing such re­al­i­ties, more than a dozen states have en­acted poli­cies known as “pre­sump­tions” that re­lieve es­sen­tial work­ers like Dori Har­ring­ton, the nurse from Con­necti­cut, of hav­ing to prove how they ac­tu­ally got COVID-19 on the job.

The list in­cludes lib­eral states like Cal­i­for­nia and con­ser­va­tive states like Ken­tucky, ac­cord­ing to WILG, the lawyers’ group. Cal­i­for­nia’s pol­icy stands out be­cause it pro­tects all work­ers, not just those in front­line roles.

At the fed­eral level, there’s a push to pro­tect work­ers at the Trans­porta­tion Se­cu­rity Ad­min­is­tra­tion and the Postal Ser­vice.

Duff pre­dicts most states will be re­luc­tant to ex­pand pro­tec­tions.

The is­sue in­volves sig­nif­i­cant costs and hard lob­by­ing. It pits work­ers, la­bor groups, lawyers, and so­cial wel­fare ad­vo­cates against em­ploy­ers, in­sur­ers, and even lo­cal and state govern­ments that em­ploy front­line work­ers.

In Colorado, a drive to en­act a COVID-19 presumptio­n for es­sen­tial work­ers stalled in the leg­is­la­ture over cost con­cerns.

“At a time of com­mu­nity spread of a dis­ease like this, it is not ap­pro­pri­ate for a work­ers’ comp sys­tem to act as a pub­lic safety net,” said Edie Sonn, head of pub­lic af­fairs for Pin­na­col As­sur­ance, Colorado’s lead­ing work­ers’ comp in­surer, which op­posed the ef­fort.

Cer­tain busi­nesses would have seen pre­mi­ums rise up to 27%, she added.

In­dus­try ex­pert Ste­fan Holzberger of the AM Best credit rat­ing agency said there’s a risk of sig­nif­i­cant losses for work­ers’ comp in­sur­ers, but there are also po­ten­tial mit­i­gat­ing fac­tors. The bot­tom line isn’t clear yet.

“From what we see so far, the av­er­age claims cost as­so­ci­ated with a COVID-19 claim is less than the loss as­so­ci­ated with a typ­i­cal work­ers’ comp claim,” said Holzberger. “Go­ing to the hos­pi­tal and get­ting a test is a lot less than get­ting neck or back surgery.”

An­other mit­i­gat­ing fac­tor: work­place in­juries went down dra­mat­i­cally in the eco­nomic shut­down.

For es­sen­tial work­ers who got COVID-19 and suf­fered through fever, fa­tigue, short­ness of breath, rack­ing cough, and other symp­toms, the de­nial or ac­cep­tance of a work­ers’ comp claim can have a pro­found im­pact.

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