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Workers’ Comp Attorneys See Trouble in OSHA Virus-Track Rules

April 20, 2020, 7:56 PM

Workers’ compensation attorneys claim OSHA guidance stating that most employers won’t have to determine whether an employee’s coronavirus infection was job-related will make it harder for workers to claim injury benefits.

The Occupational Safety and Health Administration issued a memorandum April 10 that walked back some of the agency’s requirements on when coronavirus infections must be recorded in federally mandated logs, limiting it in most circumstances to employers in the health-care industry, emergency response organizations such as police and fire departments, and correctional institutions. In early March, OSHA had issued guidance requiring far more employers to log the infections.

Workers’ compensation attorneys say employer notifications to OSHA are an important element to help prove a worker caught Covid-19 on the job. They say OSHA’s guidance will in effect make it harder for other workers, especially grocery store and warehousing employees and delivery drivers, to collect benefits.

“The OSHA 300/301 reports often serve and help with proving a workers’ compensation case. If the feds are saying employers don’t need to log infections, it’s less likely to be turned over into a workers’ comp case,” says Jon Rehm, a workers’ compensation attorney at Rehm, Bennett, Moore, Rehm & Ockander, Attorneys At Law, P.C. L.L.O. in Lincoln, Neb.

Rehm says if OSHA is advising companies not to log Covid-19 related illnesses, “it’s less likely you’d be able to find that out in the normal parameters of discovery—it just made hard cases to prove even harder.”

Workers’ compensation is a state-mandated insurance program that provides pay to workers who are injured on the job—in return, the worker agrees not to sue their employer. Like with unemployment insurance, workers’ compensation rules vary by state.

State workers’ compensation boards around the country are amending rules for benefits payouts to include health-care workers who were exposed to the virus and then quarantined.

In early March, Washington state’s Department of Labor & Industries announced that it “will provide benefits to these workers during the time they’re quarantined after being exposed to COVID-19 on the job.”

And on April 13, the Illinois Workers’ Compensation Commission approved an emergency rule creating an automatic presumption that health-care providers and first responders diagnosed with Covid-19 contracted the virus at work.

Management’s Role


Management-side attorneys say the OSHA guidance will have little effect on workers’ comp claims.

Tressi Cordaro, an attorney who represents employers with Jackson Lewis P.C. in Washington, D.C., told Bloomberg Law, “the analysis for what’s recordable for OSHA purposes has no impact on workers’ compensation and vice versa. It’s a different legal standard.”

Rehm agrees that the legal standard is different, but said that makes it “even harder” to prove a circumstantial case of workers’ compensation.

Cordaro added, “however, the same problem OSHA is wrestling with could present the same difficulty for establishing a workers’ compensation claim—proving a worker contracted the virus in the workplace.”

Attorneys are still grappling with OSHA’s decision in March that coronavirus is a recordable injury—meaning an employer would have to notify the federal safety agency when a worker caught the disease at work.

“At the moment, the question of causation is where there is a lot of uncertainty, whether it was caused by a condition at work,” Joshua Henderson, a partner at Norton Rose Fulbright US LLP in California, said last month.

Urging Workers to File

Jordan Ziegler, a workers’ compensation attorney at Pasternack Tilker Ziegler Walsh Stanton & Romano LLP in New York, said OSHA’s guidance will also make it harder for workers’ colleagues to know when they have been exposed to sick co-workers.

“This is not helpful or worker-friendly,” Ziegler said. He is advising all workers who believe they have been exposed to a sick co-worker to file for workers’ compensation even if they have no symptoms of Covid-19.

The New York State AFL-CIO is also “encouraging members who were, or suspect they were, exposed at work to promptly file with the [Workers’ Compensation] Board and notify their employer, even if they are not sick yet,” according to a memo obtained by Bloomberg Law.

“The exposure is the injury for which they can file, whether they become ill goes to whether they will suffer any losses that entitle them to benefits,” the memo states. “The applications should contain as much detail as possible about the exposure. This is important because it will help them prove their workplace exposure.”

A representative from the union was not available for comment.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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