“The state-level workers’ comp system is difficult enough to navigate in an average world. But combined with ever-changing federal mandates related to [COVID-19], it adds a complexity to the pandemic environment that will impact employers for a long time to come, as they seek to not only protect employees, but also mitigate their legal and compliance risks,” Risk & Insurance reports.

The outlet extensively cited Goldberg Segalla’s Jennifer B. Santoro and Zachary H. Pratt, partners in the firm’s Workers’ Compensation practice based in Chicago and Albany, respectively, who recently presented on these issues in a webinar, “Post-COVID-19: Workers’ Compensation Return to Work.”

Compensability

Risk & Insurance highlighted questions of compensability for COVID-19-related claims, which will be top-of-mind especially for national and multi-state employers.

“I can’t make any sweeping statement as to what [these] presumptions say … because they’re all going to be very, very different in terms of their minutiae and how it applies to your particular situation,” Jennifer said. While a presumption of compatibility “doesn’t mean we can’t fight those cases, defend those cases, or that they’re all compensable,” she added, these laws do make the burden of proof much easier for employees in protected categories.

Return-to-work issues

Risk & Insurance also cited the firm’s messages regarding return-to-work safety concerns and related OSHA, CDC, and EEOC guidance.

“What OSHA means by basic infection prevention and workplace hazard control isn’t rocket science,” Zach said. “It’s really kind of the high points that we’ve been hearing from the CDC for quite some time now. It involves encouraging everyone in the workplace to maintain appropriate hygiene. That’s proper hand-washing, proper distancing, sanitizing any shared equipment.”

“Part and parcel of that is we need to make sure that we are encouraging everybody to demonstrate appropriate respiratory etiquette. How do we cover a sneeze? How do we cover a cough? I know it’s going to feel like we’re back in preschool, but we’re going to have to have supervisors go through these etiquette steps with all of our employees,” he added.

Defending claims

Jennifer and Zach closed their webinar by addressing questions related to claims-handling and defense. The essential question in defending COVID-19-related workers’ compensation claims, Jennifer said, will be “What can [you] show the court that you did to protect this employee?”

“Can you document that you changed your physical workspace? Can you document that you taught your employees how to work in this new work environment? What did you teach them? When did you teach them? Did you teach them how to use the PPE? Did you remind them how to sneeze like that? It’s kind of silly, maybe, but it’s the reality that we live in now,” she explained. “We’re going to have to go back to some basics in some respects in order to stave off these cases and defend these cases.”

More information

• Email us to request access to the recorded webinar.

Read the article:

• “COVID-19’s Top Legal and Regulatory Pitfalls for Workers’ Comp—What to Watch Out For,” Risk & Insurance, June 8, 2020