1-31-2020; Is Coronavirus “Covered” Under Workers’ Comp?; Plans to Keep Medical Marijuana out of Workers’ Compensation May be Going Up In Smoke! by Matt Ignoffo, JD and more
/Synopsis: Is Coronavirus “Covered” Under Workers’ Comp?
Coronavirus has just been designated a global health emergency by WHO or the World Health Organization. This viral disease is spreading across the globe and is in our country right now.
It is important for risk managers to understand the crisis and, as the scouts say, be prepared! The answer to the simple question “is coronavirus covered under workers’ comp” is yes and no—it is not a work injury so that wouldn’t be an issue. But coronavirus could be an occupational disease if it was contracted as part of work. If one of your workers suffers from this disease, you need to investigate, determine compensability and if they contracted coronavirus as an OccDisease, pay for medical care and lost time related to the virus.
What is an Occupational Disease?
Occupational disease is defined as a chronic disorder caused by work activities or environmental conditions within the workplace. Occupational diseases can affect various parts of the body, such as the bones, lungs, and muscles. Common types of occupational diseases include:
Contact dermatitis
Chronic obstructive pulmonary disease
Bronchitis
Asbestosis
Lateral epicondylitis, also known as tennis elbow
Asthma
Cancer
Rabies
What Causes an Occupational Disease?
There are many workplace factors that can result in on-to-job illnesses for your workers. For instance, an employee can fall ill after being exposed to harmful gases or chemicals used in business operations. The key is to confirm it is a workplace exposure and not a general life exposure.
Who is at Risk?
It’s important to understand that every business carries some risk of their employees developing an occupational disease. Everyone feels the coronavirus will be contracted from foreign travel, particularly to China and in meetings with workers who have traveled abroad.
How Do Occupational Diseases Affect Your Workers Compensation/OccDisease Insurance?
If an employee is claiming an occupational disease, they must prove the exposure was caused by a hazard existing in or from the workplace. Additionally, symptoms of the disease must also be consistent with other documented cases of the illness. To my understanding, if you are covered for WC, you are covered for OD.
If the employee can prove their ailment was due to their work activities or environment, then your Workers Compensation/OccDisease coverage and handling will proceed as usual. Risk managers need to be sure to do a full and thorough incident/exposure investigation.
What is Coronavirus?
Coronavirus is a new respiratory virus or “bug” first isolated in Wuhan, China. The virus is contagious and potentially fatal for about 3% of those who contract the virus. It is suspected coronavirus it is transmitted through coughing and sneezing of infected individuals. At the present time, there is no vaccine, cure or specific treatment.
How is Coronavirus spread?
Health authorities have not confirmed how Coronavirus is transmitted, but suspect it is spread person-to-person. There is also evidence the virus has been spread by infected animals, including humans with links to seafood or animal handling and markets. Epidemiologists do not believe you can get coronavirus from air, water or food.
How many people survive Coronavirus?
Currently, Coronavirus has a fatality rate of less than 3%. As such, the vast majority of those affected have survived the disease. Please remember an Illinois WC fatality due to OccDisease can bring reserves well into the millions. Happy to explain, if you need that math.
What are the signs and symptoms of Coronavirus?
Individuals infected with Coronavirus have displayed the following symptoms:
1. Mild to severe respiratory illness;
2. Fever;
3. Cough;
4. Difficulty breathing; and
5. Death.
How infectious is Coronavirus?
Virus transmission happens on a spectrum and health/medical authorities are not sure if the virus is highly contagious, or less so. For person-to-person transmission, health authorities suspect the virus is spread through coughing and sneezing, similar to how influenza and other respiratory pathogens are spread. The incubation period from first exposure or the time interval from infection to onset of respiratory distress symptoms, is 2-14 days. During this period, an individual can be infected and may be innocently spreading the disease although they may not be experiencing the signs and symptoms of the virus. This is going to require travelers and high-risk individuals to be quarantined.
How can my company protect itself?
Because there is currently no vaccine to prevent infection, the best way to protect yourself is to avoid being exposed to this virus. The CDC recommends the following additional steps:
· Wash your hands often!! Use soap and water for at least 20 seconds. Use an alcohol-based hand sanitizer that contains at least 60% alcohol if soap and water are not available.
· Avoid touching your eyes, nose, and mouth with unwashed hands.
· Avoid people who are sick.
· Stay home when you are sick.
· Cover your cough or sneeze with a tissue, then throw the tissue in the trash. If you don’t have a tissue, cough into your elbow.
· Clean and disinfect frequently touched objects and surfaces.
What happens if I suspect I or someone I know has Coronavirus?
If you exhibit symptoms of Coronavirus within two weeks of traveling from China, you should contact a healthcare professional and mention your recent travel. If you have had close contact with someone exhibiting Coronavirus symptoms who has recently travelled from China, you should call ahead to a healthcare professional and mention your close contact and their recent travel. Your healthcare professional will work with your state’s public health department and CDC to determine if you need to be tested for Coronavirus.
Should I consider quarantining employees, or having employees remain off work, who have recently returned from China?
You should consider telling any employee returning from China that they should remain away from work for fourteen days from their return. You can also consider telling the employees to self-monitor for any symptoms of Coronavirus. If any of these symptoms occur, the employee should consider being evaluated by a healthcare provider. Further, even if not symptomatic, employees may also want to consult a healthcare provider to confirm that the employee is not infectious before returning to work.
Can/Should Your Company Restrict Employees from Traveling to China?
Yes. Employers may consider restricting employee travel to the particular areas affected by the disease for business purposes. Employers may also consider requesting employees inform the employer if they are traveling for personal reasons so the employer is aware of employees who are going to areas and are exposed to the disease. Employees who travel to China need to be informed that they may be quarantined upon their return. Employees should also be informed that there may not be adequate medical services available if they travel to China and become ill.
Does FMLA leave apply for our Employees, or immediate family members, who may contract Coronavirus?
Remember FMLA is unpaid leave. FMLA could apply to work exposures and it is available for folks that took personal trips to China. Therefore, assuming FMLA applies to the employer and the worker(s) qualify for such leave, Coronavirus would qualify as a “serious health condition” under FMLA allowing an employee to take FMLA leave if either the employee contracts the disease or an immediate family member contracts the disease. The employee would be entitled to job reinstatement as well.
Would Our Company need to pay Workers’ Compensation/OccDisease Benefits for Employees who contract Coronavirus?
Perhaps, if the employee contracted the disease in the course of their employment. The issue to resolve--does the employee’s work require them to be exposed to persons who are infected, typically healthcare workers. It is going to be interesting/challenging to see what an employer would have to do if one worker secretly traveled to China and then returned to infect co-workers without knowing it. Let’s hope that doesn’t happen.
If there is Workers’ Compensation/OccDisease liability, employers are responsible for covering the costs of reasonable and necessarily medical care, temporary total disability benefits, and permanent disability (if any). Employers should engage a competent medical professional on infectious diseases for advice to determine whether the disease is work-related.
Does ADA restrict how we interact with our employees due to Coronavirus?
No. The ADA protects employees with disabilities, but during a global health emergency, as recently declared by the World Health Organization, employees can be required to be medically examined to determine if they have contracted the disease. Also, voluntary medical exams are always permitted, if performed confidentially. The EEOC has suggested materials to distribute to the workforce in the event of global health emergency.
The ADA protects qualified employees with disabilities from discrimination. A disability may be a chronic physical condition, such as breathing. Employees may be entitled to an “accommodation” such as leave or be allowed to work away from work for a limited period. Employees who have contracted the virus must be treated the same as non-infected employees, as long as the infected employees can perform their essential job functions. If the employee poses a health or safety threat to the workforce, the employer may place the employee on leave.
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Synopsis: Plans to Keep Medical Marijuana out of Workers’ Compensation May be Going Up In Smoke! Research and writing by Matt Ignoffo, JD.
Editor’s Comment: On January 13, 2020, the New Jersey Appellate Court issued a decision in Hager v. M&K Construction where it held an employer needs to reimburse an injured worker of his expense for medical marijuana. In a case of first impression, the Court ruled on multiple arguments the employer made:
M&K Construction argued the federal Controlled Substances Act (CSA), which makes it a crime to manufacture, possess or distribute marijuana, preempted the NJ Compassionate Use Medical Marijuana Act (MMA) because it is impossible to comply with both statutes;
M&K argued in order to comply with the lower court’s order to reimburse the employee such order violates the Controlled Substances Act because it requires M&K to aid and abet the injured worker’s possession of an illegal substance.
M&K argued it should be treated similarly to a private health insurer, which under the MMA is not required to reimburse costs of medical marijuana.
M&K argued the lower court erred in failing to consider whether medical marijuana was a reasonable and necessary form of treatment under the NJ Workers’ Compensation Act.
The Appellate court concluded the order did not require M&K to possess, manufacture or distribute marijuana. The order only confirmed M&K’s obligation to reimburse the injured worker for his purchase of medical marijuana. As such, the court indicated there was no conflict between the Controlled Substances Act and the NJ medical marijuana statute.
Furthermore, M&K's compliance with the order does not establish the specific intent element of an aiding and abetting offense under federal law.
The Court addressed the private insurer argument, but came to the simple conclusion that M&K is not a private health insurer. Therefore, it is not excluded under the MMA from reimbursing the costs of medical marijuana.
The court commented on the facts of the particular case in addressing whether marijuana was reasonable and necessary under the WC Act. It opined, where the injured worker demonstrated the severity and chronic nature of his pain, his attempts to unsuccessfully alleviate the pain with multiple surgeries and medical modalities, and the validated efficacy of the prescribed medical marijuana, it held the use of medical marijuana to be reasonable and necessary.
The lower court decision included a discussion on opioid medication, which the injured worker had tried previously with an indication that in 2015 he was addicted to opioids. Apparently, through the medical marijuana program, the injured worker was able to improve his condition and had been opioid-free for several years. Therefore, the lower court concluded the benefits of medical marijuana were superior to the use of opioids and the use of medical marijuana was in the injured worker's best interests.
As the Appellate Court found no legislative or legal barrier to an employer's reimbursement of its employee's expense for medical marijuana in a workers' compensation setting, it affirmed the lower court’s order indicating the employer is liable for reimbursement.
Such rulings would appear to be a trend in the overall shift in how the country feels about medical and even adult personal use of marijuana. We will report on any further decisions with a special interest in court opinions addressing not only the conflicts in state and federal law, but marijuana use in conjunction with an employer’s right to maintain a zero tolerance policies.
This article was researched and written by Matthew Ignoffo, J.D., M.S.C.C., who practices in Illinois and Wisconsin. Please feel free to contact Matt at mignoffo@keefe-law.com.