This article was co-authored by Shannon Kuznia, Commercial Insurance Claim Manager.
NOTE: On April 27, Illinois withdrew its emergency rules on workers' compensation for essential workers who contract COVID-19.
On April 8, 2020 Governor Tim Walz enacted a temporary amendment to the Minnesota Workers’ Compensation Act, which provides that employees in certain employment classifications who contract COVID-19 are presumed to have a covered occupational disease.
On Monday, April 13, 2020, Illinois Governor, JB Pritzker, announced certain essential workers who contract COVID-19 on the job will be automatically covered by workers’ compensation (this has since been withdrawn).
On Wednesday, April 15, 2020, the Wisconsin State Assembly passed, and Governor Tony Evers signed into law, a COVID-19 relief bill which includes implications for workers' compensation insurance.
We’ve developed some quick FAQs to cover what’s changing in each state. Navigate to a specific FAQ:
The information provided in this quick FAQ is referenced from The Minnesota Department of Labor and Industry website: Bill language | Bill summary | Frequently asked questions (April 8, 2020)
1. What are the effective dates of the temporary amendment?
The law went into effect April 8, 2020 for any qualified employee who contracts COVID-19 on or after the date of enactment. The law remains in effect until May 1, 2021.
2. How do we determine the date of injury?
The date of injury for an employee who has contracted COVID-19 will be the date that the employee was unable to work due to diagnosis of COVID-19 or due to symptoms that were later diagnosed as COVID-19, whichever occurred first.
3. Which employees are covered by the temporary amendment?
4. What does “presumed” mean in the context of this temporary amendment?
Under the temporary amendment, certain employees who contract COVID-19 are presumed to have an occupational disease arising out of and in the course of employment. This is a big deal, because, normally, the burden is on the employee to prove that their injury arose out of and in the course of their employment. This can be especially difficult in cases of viral transmission, since the workplace rarely presents a greater likelihood of infection than simply being out in the general public; even if you catch strep throat from a co-worker, work comp policies won’t cover such claims because there is nothing about the workplace that made you uniquely susceptible.
Now that the COVID-19 related claims from employees listed in the previous question are presumed to be work-related, they will automatically be covered by work comp unless employers can prove they contracted the illness somewhere else.
5. Does an employee covered under temporary amendment need to test positive for COVID-19?
No. A positive test is not required to qualify for the presumption that the condition is work-related. The statute indicates that if a laboratory test is not available, a licensed physician, licensed physician assistant, or licensed advanced practice registered nurse (APRN) may diagnose the employee’s symptoms as COVID-19 without a positive test.
The temporary amendment indicates that in order to qualify for the presumption, a copy of the positive test or written documentation needs to be provided to the employer or insurance carrier.
6. Can a COVID-19-related workers’ compensation claim be denied?
Yes, if the employee is not in one of the covered employment classifications, or fails to provide the documentation of a positive test or diagnosis of COVID-19, the claim may be denied.
7. Can other classifications of employees, or employees who contract COVID-19 outside of the temporary amendment effective dates claim COVID-19 as a work-related disease?
Yes, however, such employees do not get the benefit of the presumption. Such employees will have the burden of proving their COVID-19 diagnosis arose out of and in the course of their employment.
8. Are covered employees entitled to workers’ compensation benefits if they are merely exposed to COVID-19 at work and are required by their employer to self-isolate?
No. Employer-imposed precautionary quarantines without a diagnosis of COVID-19 do not qualify for work comp benefits.
9. Is there a class code due to COVID-19?
The Minnesota Workers' Compensation Insurers Association (MWCIA), responsible for calculating and distributing the experience modifiers that insurance carriers use to determine workers' compensation premiums, has adopted a new class code for reporting certain payroll for this unprecedented event. Proposed by the National Council on Compensation Insurance (NCCI), the class code rule was designed to reward organizations with paused or limited operations that have kept inactive employees on the payroll by eliminating the need to pay the cost of their workers' compensation insurance while they are inactive. The rule change will create a new statistical payroll code for employees who are still being paid but are not actively working. The salary of these employees would not be included in employers' workers' compensation insurance premium. Minnesota will adopt Statistical Code 0012 to accommodate paid furloughed workers.
1. What are the effective dates of the relief bill?
The law retroactively applies to March 12, 2020 when Governor Evers declared a public health emergency by Executive Order 72. The law will expire 30 days after the termination of the order.
3. Which employees are covered by the relief bill?
“First responders" broadly defined as an employee of, or volunteer for, an employer that provides firefighting, law enforcement, medical, or other emergency services, and who has regular, direct contact with, or is regularly in close proximity to, patients or other members of the public requiring emergency services within the scope of the individual's work for the employer.
4. What defines a COVID-19-related work comp claim?
Under the relief bill, certain employees who contract COVID-19 are presumed to have an occupational disease arising out of and in the course of employment. However, it is more like a quasi-presumption because the employee still has to prove that they have been exposed to persons with confirmed cases of COVID−19 in the course of employment, only then is the injury presumed to be caused by the individual’s employment.
If they can establish exposure, however, the presumption is still helpful because they do not have to overcome the burden of proving that the workplace rarely presents a greater likelihood of infection than simply being out in the general public.
5. Does an employee covered under the relief bill need to test positive for COVID-19?
No. However, an injury claimed under this provision must be a) accompanied by a specific diagnosis by a physician OR by a positive COVID-19 test; b) the employee must have been exposed to persons with confirmed cases of COVID-19 in the course of employment; and c) may be rebutted by specific evidence that the injury was caused by exposure to COVID-19 outside of the first responder's work for the employer.
Yes, if the employee is not in one of the covered employment classifications, or fails to provide the accompanying information (see #5 above) of a positive test or diagnosis of COVID-19, the claim may be denied.
7. Can other classifications of employees, or employees who contract COVID-19 outside of the relief bill effective dates claim COVID-19 as a work-related disease?
The Wisconsin Compensation Rating Bureau (WCRB), responsible for calculating and distributing the experience modifiers that insurance carriers use to determine workers’ compensation premiums, has established a new class code for reporting certain payroll for this unprecedented event. Insurance carriers can implement the new Unit Statistical Code 0012 within their operating systems to accommodate paid furloughed workers specifically during a governmental emergency order impacting employment. Access the Covid-19 and Wisconsin Worker’s Compensation Paid Furloughed Employee Updates and FAQ’s online for more information at WCRB.org.
Illinois workers’ compensation FAQs
NOTE: On April 27, Illinois withdrew its emergency rules on workers' compensation for essential workers who contract COVID-19. The questions and answers below are from the 4/21 posting date. The FAQ below explains the rule as it was originally released.
1. What are the effective dates?
The emergency amendment went into effect on March 9, 2020 when Governor Pritzker declared a state of emergency. The rule itself is only effective for 150 days upon filing, which can impact the evidentiary issues in any cases filed thereafter.
3. Which employees are covered by the emergency amendment?
“COVID-19 First Responder or Front-Line Worker,” which 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, and correction officers. Illinois’ emergency amendment also broadens the presumption to include individuals in the following essential infrastructure personnel:
Under the emergency amendment, certain employees who contract COVID-19 are presumed to have an occupational disease arising out of and in the course of employment. This is a big deal, because, normally, the burden is on the employee to prove that their injury arose out of and in the course of their employment. This can be especially difficult in cases of viral transmission, since the workplace rarely presents a greater likelihood of infection than simply being out in the general public, so even if you catch strep throat from a coworker, work comp policies won’t cover such claims because there is nothing about the workplace that made you uniquely susceptible.
No. A positive test is not required to qualify for the presumption that the condition is work-related.
Unlike Minnesota or Wisconsin, Illinois does not currently provide clear direction on what documentation would be required to uphold or deny a claim.
7. Can other classifications of employees, or employees who contract COVID-19 outside of the emergency amendment effective dates claim COVID-19 as a work-related disease?
No. The emergency rule does not guarantee or assure an award of benefits to any individual who suspects he or she has contracted COVID-19 or self-isolates and self-quarantines due to an alleged or suspected exposure to COVID-19.
1. If an employee is receiving workers’ compensation pursuant to their state’s COVID-19 work comp provisions, will they also be eligible for Emergency Paid Sick Leave under the Families First Coronavirus Response Act (FFCRA)?
Maybe. The FFCRA provides up to 80 hours of Emergency Paid Sick Leave (EPSL) to employees who are unable to work (or unable to telework) due to a need for leave because the employee:
Normally, work comp benefits are paid regardless of whether employees are receiving PTO or sick pay at the same time, and it seems likely that EPSL benefits will be treated the same way, although we don’t know for sure. It is also unclear how EPSL was intended to interact with work comp benefits. For instance, is an employee entitled to a full day of EPSL benefits, irrespective of any other third-party compensation (such as work comp) they may be receiving, and thus essentially be double paid for the day?
Although we can’t say for sure, it seems reasonable to use EPSL benefits to pay the difference between the employee’s regular wages and the amount they’re being paid by work comp until the employee either returns to work, or the EPSL benefits are exhausted (full-time employees receive up to 80 hours of EPSL benefits, while part-time employees receive less). However, if an employee demands to be paid EPSL in full-day increments, the conservative approach would be to go ahead and do so, regardless of the workers’ compensation benefit. This would result in double pay, but also a faster depletion of the employee’s EPSL.
EPSL benefits for situations that would also be covered by work comp are paid at 100% of the employee’s regular wages up to $511 per day, whereas work comp benefits are usually paid at 2/3 of the employee’s regular wages. Plus, with work comp benefits, there’s a 3-day waiting period before wage replacement benefits are paid, and, to compound matters, wage replacement can be retroactively paid for the waiting period if the disability continues for ten calendar days or longer. However, in most cases it seems likely that a diagnosis of COVID-19 would continue for ten calendar days or longer, so the waiting period may not be an issue.
2. Can an employee receiving workers’ compensation wage benefits for a non-COVID-19 injury receive EPSL if they have a qualifying event?
In general, no. When an employee receives workers’ compensation or temporary disability benefits because they are unable to work due to a non-COVID-19 condition, they cannot take EPSL. However, if the employee was able to return to work (e.g. part-time light duty) and a qualifying reason prevents them from working, the employee may take EPSL for the difference, up to 80 hours.
3. When will any employee receiving workers’ compensation benefits also be eligible to receive Emergency FMLA (EFMLA?)
Eligibility for EFMLA will arise in a narrow set of circumstances for an individual receiving workers’ compensation wages. First, the employee will need to be working; presumably part-time if they are still receiving workers’ compensation wage benefits. Second, the only reason an employee can receive EFMLA is when a “qualifying need related to a public health emergency” exists where a federal, state or local authority has declared an emergency with respect to COVID-19 and the employee is unable to work or telework due to a need for leave to care for a minor son or daughter whose school or place of care has been closed or whose child care provider is unavailable.
The first two weeks of leave are unpaid, and the last 10 weeks are paid at 2/3 their regular rate. If an employee is working part time and receiving part time workers’ compensation benefits, as mentioned in #3 above, it seems reasonable to use EFMLA benefits for the time missed due to the qualifying need to care of a minor child. The payment of 2/3 of their regular rate of pay would only be for the number of hours the employee would otherwise have worked, up to $200 per day ($10,000 total).
Visit our COVID-19 Resources page for more articles and other resources.
Heather offers practical guidance and helps employers find solutions to employment law and compliance matters.
Heather educates and advises employers on all aspects of employment law, including compliance with state and federal laws, leaves of absence, discrimination, harassment, accommodations, discipline and discharge, wage and hour obligations, unfair competition, and other issues that arise in the workplace. In addition to Heather’s employment counseling, her background includes nearly a decade of litigation experience. Her prior experience includes litigating for a regional insurance company, business disputes, and employment.
Risk management and human resources are traditionally two different job functions, and the people in these areas have rarely crossed paths — but that is changing.
Why are these people starting to work together more frequently?
In its 2014 Workplace Safety Index, Liberty Mutual estimated that employers pay just under $1 billion per week to injured employees and their medical care providers. Since even one serious workplace injury may impact the bottom line of a small or mid-size business, it is essential that employers have an effective injury and illness prevention program in place.
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