Meat+Poultry - July 2020 - 98

LABOR

COVID-19 compensation
As businesses across the country
begin to reopen, almost all employers
are making efforts to follow guidance
from the Centers for Disease Control
and Prevention, Occupational Safety
and Health Administration and local
health agencies to minimize the
risk of the coronavirus (COVID-19)
exposure to employees. The most
common precautions include social
distancing, increased sanitization
and hand hygiene protocols, use
of personal protective equipment
such as face masks, daily pre-shift
screening, including employee
temperature checks, and in some
cases, physical barriers between
employee workstations and employees.
Some employers are screening their
employees and others are requiring a
negative test finding before permitting
employees back into the workplace.
However, implementation of all
the recommended safety measures
notwithstanding, there remains the
potential of a sharp rise in workers'
compensation claims by employees
who contract the COVID-19 infection
after returning to the workplace.
Workers' compensation has
historically been the exclusive remedy
available for workplace injuries or
illnesses. Employers pay significant
premiums on workers' compensation

insurance policies that provide
coverage for their employees. It is a
no-fault system in which the employee's
medical expenses are covered, and they
also receive monetary reimbursement
for lost wages if they must be away
from work due to the injury or illness.
COVID-19 has created a serious
wrinkle in this well-known system. Can
the traditional workers' compensation
system operate in a pandemic and its
aftermath? In most states, workers'
compensation does not apply to the
"ordinary diseases of life." As is plainly
evident, COVID-19 can and does affect
any member of the public and is not
unique to any workplace. Therefore,
state workers' compensation
commissions may consider COVID-19
an "ordinary disease of life" due to the
reality of its acknowledged community
spread. A determination that workers'
compensation is certainly not
applicable could expose the employer
to a civil action of negligence. Whether
it is a workers' compensation claim, a
work-related illness, or a lawsuit by the
employee alleging negligence by their
employer that caused the COVID-19,
there is a significant problem of proof
that the illness was contracted in the
workplace. State governments are
attempting to find a way to protect
employers from major increases in
their insurance premiums and at the
same time provide benefits at a time
when it is most needed in light of the
economic disaster caused by COVID-19.

COVID-19 LAWSUITS
Workers' compensation claims related
to COVID-19 in the workplace while
potentially significant, are not the
most serious legal issues confronting
employers trying to operate during
the pandemic or struggling to reopen.
Lawsuits claiming a variety of alleged
employer misconduct have already
been filed (over 2,000 cases), and there
are certainly more to come. Many of
these lawsuits have alleged intentional
conduct by the employer that resulted in
employees being exposed to COVID-19.
They have alleged that their employer
failed to adequately sanitize work
spaces, that they have failed to enforce
social distancing, that they failed to
close the facility when other employees
displayed symptoms. Many of the
allegations relate more to negligence
than actual intentional conduct.
However, if an employer has made
good faith efforts to implement and
consistently enforce the recommended
worker safety steps to the extent
feasible, it is likely to be successful in
defending against such lawsuits.
In view of the constantly evolving
guidance on how to mitigate the
potential for exposure to the
coronavirus, and to properly respond
to positive cases in the workplace, it is
incumbent on all employers to monitor
carefully for any new governmental
guidance or clarification that will
enhance the protection for employees.
RICHARD ALANIZ | meatpoultr y@sosland.com

98

MEAT+ POULTRY | 07.20 | www.meatpoultry.com

Tierney - stock.adobe.com

Can the traditional workers'
compensation system operate in
a pandemic and its aftermath?
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Meat+Poultry - July 2020

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