In response to the coronavirus pandemic, organizations have been asked to take drastic measures to ensure the safety of employees and clients. With so many changes being rapidly implemented, many employers have been left with legal concerns about operating in the midst of a pandemic. For this reason, we decided to share information from “Business Interruption Coverage, OSHA Issues & Workers’ Compensation Issues in the COVID-19 Era,” found on jdsurpa.com. In this article, attorneys addressed concerns about insurance coverage, safety compliance, and workers’ compensation. Key takeaways are discussed below.
The authors addressed business interruption insurance coverage, advising businesses to “Put [their] insurance companies on notice immediately,” if they lost income because of the pandemic. The authors explained that doing so would not cause premiums to increase and that there was no reason not to do so. They also stated the importance of record keeping and documenting losses in real time to prove its relation to the pandemic. In addition to business interruption coverage, organizations may benefit from contingent business interruption coverage and civil authority coverage. An attorney also explained that insurance law would likely change in the wake of COVID-19 since many previous changes were in response to major disasters. Some of these changes may include the altering of existing policies and retroactive coverage.
While the attorneys didn’t believe that COVID-19 would lead to increased OSHA inspections for industries with low to medium exposure risk, they advised all organizations to be prepared for spot checks. To prepare, each workplace should practice social distancing, have adequate PPE, and have written safety policies to navigate operations during the outbreak. It was also noted that OSHA is receiving an increased number of whistleblower complaints due to the pandemic and that failing to adhere to safety guidelines could land organizations in serious legal trouble. Not only should an employer address the specific concern if they receive a letter from OSHA, they should also address all possible concerns across the workplace to prepare for possible inspection. Doing so is best practice for legal and ethical reasons.
In some cases, COVID-19 may be covered under Workers’ Compensation. The biggest question is whether it is seen as an occupational disease or an ordinary disease. In other words, did the individual become ill through on the job exposure or through day to day activities? In the article, an attorney explained that employees in professions with higher exposure risk are more likely to be covered by Workers’ Compensation. That said, the article points out that many states have implemented a rule in which COVID-19 is presumed to be an occupational disease, so it is important to find out whether this is the case in your state.
Interestingly, working from home does not generally disqualify individuals from receiving worker’s compensation. Although it would likely be difficult to rationalize COVID-19 being an occupational disease if it was spread from family members to the home office, employers should know that workers’ compensation claims can still be made if an at-home injury occurs as a result of working.
As with the above issues, it is extremely important to follow guidelines and to practice detailed record keeping. If employers use data collecting such as having employees fill out questionnaires and taking employee temperatures, it is necessary to handle this information the same way as other confidential medical records. Work with your labor counsel and become familiar with laws pertaining to confidentiality and rights for individuals with disabilities and chronic illness when considering such safety measures.