KT Recent News Alert
Re: Workers’ Compensation Issues to Consider Regarding the Coronavirus
We anticipate that employers will have to make decisions about payments to nonunion employees who miss work as a result of the Coronavirus. We anticipate that there will be four scenarios:
The employee contracts the virus and reports that he/she is sick and unable to attend work. The employee should be placed on a regular medical leave of absence, during which time he/she can utilize his/her paid leave time for payment. There are no workers’ compensation ramifications.
The employee is quarantined because of exposure to the virus that is not work-related. Under these circumstances, the employee should again be placed on a leave of absence and required to utilize his/her paid leave time for payment. There are no workers’ compensation payments or issues.
The employee contracts the virus and alleges that it was due to a work-related exposure. The employee is alleging that their illness is work-related and therefore a personal injury under the Workers’ Disability Compensation Act (the “Act”). Pursuant to section 401(2)(b) of the Act, “An ordinary disease of life to which the public is generally exposed outside of the employment is not compensable.” The employer’s dispute should be that the employee is unable to establish with medical certainty where he/she was exposed and how he/she contracted the illness. There may be some very specific scenarios involving first responders and health care workers, which we recommend be handled on a case-by-case basis.
The employer quarantines one of its employees due to a known work-related exposure. This employee does not have the disease but, because of the exposure, is not allowed to return to work for a specified number of days. During the time off, this employee will suffer a wage loss. Under these circumstances, the employer may, at their discretion and pursuant to policy, elect to: 1) require the employee to use paid leave time; 2) pay the employee normal wages or a percentage of normal wages; or 3) require the employee to take a leave without pay. It is our recommendation that the employer not report this as a workers’ compensation event and the payments should be through the employer’s payroll. The employer may consider providing additional paid leave time to cover the lost days of work.
Note: This is an evolving situation. There is federal legislation pending which may impact this analysis and which may include specific protections for first responders, health care and custodial workers. We will continue to monitor the legal requirements and implications and provide relevant updates.