YOUR QUESTIONS ABOUT COVID-19, WORKERS’ COMPENSATION, OSHA LOGS, VACCINES, & MORE

This article was first published on Archbright’s blog. You can read it there as well.

Written By Wendy LeClair & Tiffany Knudsen

 For the first time in history, employers have had to navigate workers’ compensation insurance during a global pandemic. It seems that just as quickly as new information comes out to address one situation, a new concern emerges, often leaving businesses scrambling for answers. In this post, you will find answers to some of the most common questions we’ve been hearing from employers.

DOES WASHINGTON WORKERS’ COMPENSATION COVER COVID-19 CLAIMS?

It depends. As with every potential workers’ compensation insurance claim, the assigned Department of Labor & Industries’ claim adjudicator will review the claim on a case-by-case basis. The adjudicator takes all relevant information about the particular situation into account when making a decision. For a COVID-19 claim to be covered by workers’ compensation insurance, the adjudicator will determine if the case:

·        Occurred while there was an employer/employee relationship

·        Occurred while the worker was in the course of employment

·        Was an immediate and prompt result of an incident or exposure

For the claim to be allowed, there needs to be a more than probable link to the job site as the source of the claimant’s COVID-19 exposure. For example, the claimant worked in a shop where four other employees tested positive for COVID-19 around the same time as the claimant.  

WHAT IS COVERED BY WORKERS’ COMPENSATION FOR A COVID-19 CLAIM?

If a worker tests positive for COVID-19, and the Department of Labor & Industries (L&I) has allowed the claim, the worker will be entitled to all necessary benefits, including treatment and time away from work. These benefits include such costs as those associated with diagnostic testing, medical treatment, in-patient hospitalization, time loss benefits if unable to work, and even death benefits in severe cases.

WILL COVID-19 CLAIMS IMPACT INSURANCE RATES?

No. Even if a COVID-19 case is allowed as a workers’ compensation claim, L&I will not include the costs associated with the claim when evaluating the business’s experience modification rate. L&I uses the experience modification rate to determine a business's insurance rate. Additionally, eligible businesses will not lose their claim-free discount if they have a COVID-19 claim. A claim-free discount is when the business receives additional insurance discounts for not having indemnity claims, such as time loss or permanent partial disability awards.  

WILL COVID-19 CLAIMS IMPACT RETROSPECTIVE RATING CALCULATIONS?

No. Like insurance rate calculations, COVID-19 claims will not be used when L&I calculates losses used in Retrospective Rating Programs, often referred to as “Retro.” Retro is an optional safety incentive program offered by L&I that allows businesses to earn a partial refund on their workers’ compensation insurance premiums if they reduce their workplace injuries and the costs associated with those injuries.

ARE COVID-19 CASES RECORDABLE ON THE OSHA 300 LOG?

Probably. According to the Occupational Safety and Health Administration (OSHA), COVID-19 is considered a recordable illness case on the OSHA 300 Log if:

1.   The case is a confirmed case of COVID-19 as defined by the Centers for Disease Control and Prevention (CDC);

2.   The case is work-related. To determine work-relatedness, an employer must evaluate the employee’s work duties and environment to decide if one or more events in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition; and

3.   The case involves one or more of the general recording criteria – death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or a significant injury or illness diagnosed by a physician or other licensed health care professional.

Since a quarantine period would count as missed days away from work, confirmed work-related COVID-19 cases would be recordable on the OSHA Log. Therefore, impacted employers should record the case as an “illness.” They should also count the number of calendar days that the employee was excused by a health care professional or was unable to work and any days that the worker was on modified duty if applicable.

An employee’s COVID-19 case is likely not work-related if the employee was the only one in their vicinity to contract COVID-19, and their job duties do not include having regular contact with the general public or involve other high-risk activities.

IF SOMEONE IN THE WORKPLACE TESTS POSITIVE FOR COVID-19, SHOULD EMPLOYERS PROACTIVELY ENCOURAGE EMPLOYEES TO GET TESTED?

Not necessarily. OSHA does not require employers to notify other employees if one of their co-workers tests positive for COVID-19. However, employers must take appropriate steps to protect the rest of the workforce from exposure to the virus. These steps include cleaning and disinfecting the work environment if the employee was present leading up to the confirmation and continuing to screen workers for signs and symptoms of the virus. Employers should also notify workers to monitor themselves for COVID-19 and recommend that they get tested if they start to present with any signs and symptoms.

Additionally, employers should maintain confidentiality as required by the Americans with Disabilities Act (ADA) if a worker is suspected or confirmed to have COVID-19 and continue to monitor the U.S. Equal Employment Opportunity Commission's (EEOC) COVID-19 site for updated information.

IF AN EMPLOYEE IS INJURED WHILE WORKING FROM HOME, IS THE INJURY COVERED BY WORKERS’ COMPENSATION?

Possibly. L&I considers home workspaces to be an extension of the office workspace and, as such, carry the same type of risks for valid on-the-job injury claims. To determine whether the injury occurred “in the furtherance of the business,” one first needs to determine if the injury occurred while the worker was doing their normal job functions or if they deviated from their normal functions of the job while they were at home. For example, if a worker were unloading the washing machine during work hours and pulled a muscle in their back, the claim would be rejected by L&I because laundry is not part of the worker’s job duties. On the other hand, if the worker got up from their desk chair and tripped over an extension cord used for their workstation, the claim would be allowed as a valid injury because the incident would be considered a normal deviation. Therefore, it is critical that employers set strict guidelines for safe workspaces and outline what should and should not be done during business hours while working at home. Eligible members are encouraged to see Archbright’s Home Office Safety Guide in the mozzo Resource Library for additional helpful information.

ARE INJURIES AND ILLNESSES THAT OCCUR AT HOME RECORDABLE ON THE OSHA 300 LOG?

Potentially. Like the answer above regarding OSHA logs, employers first need to determine if the injury or illness is work-related. To do so, employers should investigate the injury and determine how the worker injured themselves and what the contributing factors were. OSHA defines the work environment as the establishment or locations where one or more employees are working or are present as a condition of their employment. It includes not only physical locations but also equipment or materials used by the employee during their work. Therefore, injuries and illnesses that occur at home during the employee’s regular work hours could be deemed work-related and potentially recordable on the log.

Remember, even when cases are determined to be work-related, to be recordable on the  OSHA 300 Log, the worker needs to:

·        Have received care beyond first aid,

·        Been written off work by a healthcare professional, and

·        Be assigned to modified work or one of the other general recording criteria.

In the event where the injury or illness involves signs or symptoms that surface at work but result from a non-work-related event or exposure that occurs outside of the work environment, the case would not be considered work-related. For example, if the worker played basketball on their lunch break and sprained their ankle, the case would not be recordable because they acted outside of their normal work environment activities. By conducting incident and near-miss investigations for all work environment incidents, whether at home or in the workplace, employers should gather the information needed to determine whether cases are recordable or not and identify ways to help prevent future incidents.

ARE ADVERSE REACTIONS TO COVID-19 VACCINES COVERED BY WASHINGTON WORKERS’ COMPENSATION?

It depends. If a worker seeks treatment for an adverse reaction to a vaccine and a claim is filed subsequently, L&I will want to answer the same basic questions they ask on every industrial injury claim as outlined above. The claim’s adjudicator will collect additional information, such as:

·        Where the vaccine was administered

·        Whether the vaccine was administered during the hours worked

·        Whether the employer required the vaccine as a condition of employment

·        Whether the employer paid for the vaccine

·        Whether the worksite was coincidentally chosen as a vaccine administration site for the general public

Ultimately, whether the employer mandates the vaccination or not, if the worker receives a vaccination while in the course of employment, and there is a resulting injury due to an adverse reaction to the vaccine, it would likely be covered as a valid insurance claim.

ARE ADVERSE REACTIONS TO VACCINES RECORDABLE ON THE OSHA 300 LOG?

It depends. If employers require employee vaccination as a condition of employment, then adverse reactions to the COVID-19 vaccine will be considered work-related. The case would still need to meet one or more of the general recording criteria to be considered recordable on the OSHA 300 Log, such as if an employee receives treatment beyond first aid, is written off of work, or is assigned modified duty.

If employers do not require their employees to be vaccinated as a condition of employment but recommend it, any adverse reactions will not be considered work-related for the OSHA Log. But, for this stipulation to apply, the vaccine must truly be voluntary.

DO EMPLOYERS NEED TO CONTINUE WITH SAFETY PROTOCOLS IF EMPLOYEES ARE VACCINATED?

It's a good idea. Recently the CDC updated its guidance stating that fully vaccinated individuals no longer need to wear face coverings or physically distance with a few exceptions (health care settings, public transportation, and more). A person is fully vaccinated two weeks after the last shot in their vaccine series. However, the CDC also stated that state and local authorities and businesses could continue to set their own face covering requirements. At the time of this blog post, OSHA has not updated its guidance for employers following the CDC announcement. Although both Washington and Oregon Governors have declared they will follow CDC guidelines and that additional business guidance is forthcoming, we recommend that employers wait to change their face covering policy until this updated guidance is released.

For individuals who are not fully vaccinated yet and businesses that are continuing protocols for all individuals, workers must continue wearing face coverings, maintaining six feet of physical distance from others, and washing their hands frequently. In addition, all employers should continue to monitor for updates from the CDC, OSHA, and state and local health authorities.

WE WANT TO HEAR FROM YOU

We understand that each employer has had to adapt during the pandemic, is dealing with unique situations related to COVID-19, and may have additional questions. We encourage eligible members to reach out to the Archbright HR and Safety Hotlines for additional assistance.