by Steven P. Dlott, R. Mark Gottfried and Joseph C. Pokorny
Operating a business entails risk in any environment, much less one with a potentially deadly virus. For those employers considered essential and currently operating, a workers’ compensation claim for COVID-19 is yet a new risk to be managed.
Currently, the burden is on an employee to establish a causal relationship between COVID-19 and their employment. However, there are three bills pending before the Ohio legislature which could change this equation. Under these bills, COVID-19 would be a scheduled occupational disease. This means that an employee contracting COVID-19 would be presumed to have contracted such disease in the course and scope of their employment, which could change the burden of proof and make it more difficult for an employer to prevail. In order to defend such a claim, an employer can point to other evidence that suggests non-work exposure as the cause of the virus, such as a family member who had the virus (if such evidence exists beyond just hearsay and can be proven) or otherwise may have contracted the virus outside of the workplace.
So what can employers of essential businesses do to limit their potential exposure to such claims (should these bills become law)?
• First and foremost, make sure that the current medical guidelines and recommendations of Governor DeWine, Ohio Department of Health Director Acton, and the CDC are being followed with respect to reducing or mitigating potential exposure.
• Employers should provide employees with masks and encourage employees to wear them at all times while at work (gloves should be provided by employers and worn when practical).
• Employees should be reminded and permitted to maintain social distancing to the fullest extent possible, both with respect to interactions with coworkers and the general public.
• Employees should be encouraged to wash their hands as much as practical, using signs, announcements, etc. and employers should provide employees in the field with hand sanitizer and/or alcohol wipes.
• All equipment utilized by employees should be cleaned regularly and employees should be required to sanitize the interior of vehicles and equipment on a regular basis.
• Employees who are ill or feel under the weather should be encouraged to stay home so as not to endanger the health of coworkers.
• Finally, where possible, employees should be required to work remotely, especially if the employer is unable or unwilling to provide face protection for in-office or on-site work.
If a workers’ compensation claim is filed, legal assistance will likely be needed to evaluate the medical information in support of any potential claim. As it currently stands, an employee will still need to show not only that they have actually contracted COVID-19, but that such condition was contracted in the course and scope of their employment, as opposed to in the general public. Employers must be ready to demonstrate that all reasonable and prudent steps were taken to reduce potential exposure. Due to the technical nature of the medical documentation at issue, consulting with an experienced workers’ compensation attorney is highly recommended.
In a bit of good news, the BWC has just approved a $1.6 billion dividend for employers to ease the impact of COVID-19 on the business community. According to the BWC, checks will be mailed out to employers later this month.
COVID-19 has changed the way we work. It has created a new set of challenges and has resulted in additional consideration and potential liability for employers. The attorneys at Meyers, Roman, Friedberg & Lewis are available to assist you as you balance the safety of your employees and your business, with the implications of COVID-19 on your workers’ compensation policies, potential claim activity and return to work issues.
Please contact one of the following attorneys with your questions: