States Likely to Determine COVID-Related Workers’ Comp

When James Reidy worked at the Labor Department in the 1980s, processing worker compensation claims from asbestos exposure in shipyards, he found that many of the cases stalled over the question of causation.

The workers had been exposed to asbestos in their work, some for decades, but the long term effects of such exposure was still unknown at that point and open to challenge, he said this week, speaking at an event sponsored by the Society for Human Resource Management.

Today, the same uncertainty is gripping HR professionals who are only now beginning to reckon with whether the long-term effects of COVID-19 will be covered by workers compensation.

In the past, as a general rule, airborne infections like colds and the flu have not been covered by workers’ comp, said Gary Kushner, president of Kushner & Company.

“But this is much more serious than a typical cold and flu season,” he said, adding like the situation with asbestos, the long-term effects of COVID are still largely unknown.

The law today is likely to “tilt in favor” of covering COVID, said Reidy.

Returning to his anecdote about asbestos, he said employers and shipyard workers of past generations had no idea the asbestos fibers they were casually inhaling were slowly breaking down their lung tissue.

When it came to claims, the question of whether to extend coverage or not was often complicated by the fact the workers in question often went from one hazardous profession to another, and most of them smoked.

The same situation is now repeating itself with COVID. The question is whether cardiac, circulatory, lung muscular issues or even “brain fog,”  attributed to COVID will be covered. 

Around 17 states are considering some form of expansion of workers’ comp to cover COVID, Kushner said. However, both experts said it’s unlikely a national consensus on cause and effect and coverage will be reached anytime soon.

Lawmakers in some states, like California, have drafted legislation that would establish a presumption of COVID exposure at work, making the employees eligible for some level of workers’ compensation.

In other states, Michigan among them, state courts have intervened and declared unilateral efforts to cover COVID’s long term effects with workers’ comp unconstitutional. 

Should the presumption be that the workers got infected at their workplace, Reidy added, it would be a “very expensive proposition” for the employers that are also recovering from the economic recession.

However, this will be an issue that is “decided in the political, not judicial, arena,” Kushner said. “The battle will be fought in state capitals.”

The issue is likely to come down to the individual workplace factors such as the number of other employees that got infected and if proper risk mitigation factors have been implemented, the speakers said. 

In the near term, COVID actually drove down workers’ compensation claims in 2020, as large numbers of employees worked from home or on lighter, hybrid schedules.

According to the speakers, it’s not workers’ comp, but what to do when people start coming back to the office or store or factory, that’s most on employers’ minds.

What can they require of their workers? How much do medical privacy laws prevent them from asking about a workers’ COVID exposure or whether they’ve had a shot? Can they require proof of vaccination?

For now, Kusher said, all HR professionals can do is digest all the scientific and legal information that is trickling in and hope they are making the right decisions.