Lauded for their service and hailed as everyday heroes, essential workers who get the coronavirus on the job have no guarantee in most states they'll qualify for workers' compensation to cover lost wages and medical care.
Fewer than one-third of the states have enacted policies that shift the burden of proof for coverage of job-related COVID-19 so workers like first responders and nurses don't have to show they got sick by reporting for a risky assignment.
Debate over workers’ comp in the states is part of a much larger national discussion about liability for virus exposure, with Republicans in Congress seeking a broad shield for businesses in the next coronavirus relief bill.
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And for most employees going back to job sites as the economy reopens, there's even less protection than for essential workers. In nearly all states, they have to prove they got the virus on the job to qualify for workers' comp.
Nurse Dori Harrington of Manchester, Connecticut, said she got COVID-19 caring for infected patients at a nursing home, with limited protective gear. Harrington was severely ill and missed five weeks of work, yet her workers' comp claim was initially denied on grounds that her disease was “not distinctively associated with, nor peculiar” to her job.
“It's great to be appreciated, but we need to be taken care of, too,” said Harrington, who eventually won her claim with union help. “Nobody should have to fight to be taken care of when they were simply doing their job taking care of other people. It's obnoxious to me.”
Workers' compensation is not health insurance, or an unemployment benefit. The $56 billion, state-level insurance system is one of the nation's oldest forms of a social contract. In exchange for coverage, workers give up the right to sue their employers for job-related harms. Employers pay premiums to support the system. Complex rules differ from state to state.
Dealing with job-related injuries is fairly straightforward, but diseases have always been trickier for workers' comp, and COVID-19 seems to be in a class of its own.
“You don't know per se where you inhaled that breath whereby you became infected,” said Bill Smith, president of the Workers’ Injury Law & Advocacy Group, or WILG, a professional association of lawyers representing workers.
You can still reach a logical conclusion, says University of Wyoming labor law professor Michael Duff.
“When you are talking about certain kinds of frontline workers, out in the trenches, day in and day out, that person starts to look like the coal miner who is routinely exposed to a hazardous health condition because of their work,” he explained.
Think hospital and nursing home clinical staff, first responders, and meat packing workers, among others.
Acknowledging such realities, more than a dozen states have enacted policies known as “presumptions” that relieve essential workers like Dori Harrington, the nurse from Connecticut, of having to prove how they actually got COVID-19 on the job.
The list includes liberal states like California and conservative states like Kentucky, according to WILG, the lawyers' group. California's policy stands out because it protects all workers, not just those in frontline roles.
At the federal level, there's a push to protect workers at the Transportation Security Administration and the Postal Service.
Duff predicts most states will be reluctant to expand protections.
The issue involves significant costs and hard lobbying. It pits workers, labor groups, lawyers, and social welfare advocates against employers, insurers, and even local and state governments that employ frontline workers.
In Colorado, a drive to enact a COVID-19 presumption for essential workers stalled in the legislature over cost concerns.
“At a time of community spread of a disease like this, it is not appropriate for a workers' comp system to act as a public safety net," said Edie Sonn, head of public affairs for Pinnacol Assurance, Colorado’s leading workers' comp insurer, which opposed the effort.
Certain businesses would have seen premiums rise up to 27%, she added.
Industry expert Stefan Holzberger of the AM Best credit rating agency said there's a risk of significant losses for workers' comp insurers, but there are also potential mitigating factors. The bottom line isn't clear yet.
“From what we see so far, the average claims cost associated with a COVID-19 claim is less than the loss associated with a typical workers' comp claim,” said Holzberger. “Going to the hospital and getting a test is a lot less than getting neck or back surgery.”
Another mitigating factor: workplace injuries went down dramatically in the economic shutdown.
For essential workers who got COVID-19 and suffered through fever, fatigue, shortness of breath, racking cough, and other symptoms, the denial or acceptance of a workers' comp claim can have a profound impact.
Fire alarm inspector Kenneth Larkin of Montevallo, Ala., said he was rebuffed by his former employer when he requested workers' comp for a coronavirus test. He had gotten sick soon after inspecting systems in the COVID-19 wing of a hospital.
“I think a certain number of workers are being villainized because they want to take care of themselves,” said Larkin, who's retained a lawyer. “It's hard for me as a human being to swallow that, when you place the value of a person's health at less than the cost of a test.”
But nurse Debbie Koehler of Warren, Ohio, said she felt validated when her claim was accepted by the insurer for the rehab hospital where she works.
“It's just knowing that my employer is actively admitting that this wrong happened and they are paying for my therapy,” she said.