COVID-19 AND THE CONSTRUCTION INDUSTRY

Here's How You Can Protect Your Business
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Liability of Employers in COVID-19-Related Workers’ Compensation Claims

As of the time of this writing, the State of Florida has surpassed New York as the state with the second-most recorded COVID-19 cases in the nation, exceeded only by California. According to the COVID-19 Dashboard from John Hopkins University, more than 420,000 people have been diagnosed with COVID-19 in Florida. As the death toll begins to catch up to record-breaking single-day increases in new cases among residents, it’s no wonder that Florida is emerging as the new global epicenter for the pandemic. With those facts in mind, it’s easy to see why employers and employees alike have questions regarding the liability of employers in workers’ compensation claims regarding COVID-19. 

That’s why, in this article, we set out to break down and simplify some of the complexities of determining whether or not an employee contracted COVID-19 as a result of work-related exposure. Should you have any concerns whatsoever regarding how you can work to shield your business from potential liability, COVID-19-related claims or any other type of claims, don’t hesitate to reach out to one of our workers compensation defense attorneys in Florida

Related: COVID-19 and Workers’ Compensation in Construction

COVID-19 and Occupational Disease

On April 6, 2020, the Florida Office of Insurance Regulation issued an informational memorandum on workers’ compensation guidance for COVID-19. This memorandum laid out the following guidelines regarding eligibility for workers’ compensation benefits: 

First responders, health care workers, and others that contract COVID-19 due to work-related exposure would be eligible for workers’ compensation benefits under Florida law. See § 440.151, Fla Stat.

Not unsurprisingly, the most important part of this memorandum lies in the Florida statute it links back to — Occupational Diseases. In other words, in order for these workers to be eligible for workers’ compensation benefits, COVID-19 must meet the requirements of the statute. These requirements are as follows:

  • The employee must have contracted the disease as a result of performing their job.
  • The likelihood of contracting the disease must be substantially higher in the employee’s occupation than compared to the general public. 

The difficulty of providing the necessary documentation for these requirements is reflected in the rate of new filings for workers’ compensation claims. Either fewer workers are actually in the workplace (which is probable), or they simply aren’t succeeding in filing workers’ compensation claims.

Related: Workers’ Compensation Claims Increase During Uncertain Times 

OSHA on Work-Relatedness

Fortunately for employers,  due to the difficulty with determining work-relatedness, the Occupational Safety and Health Administration (OSHA) published a similar memorandum on May 19, 2020, to help employers determine whether they have complied with their obligations and made a reasonable determination of work-relatedness. First and foremost, it lays out that employers are not expected to “undertake extensive medical inquiries.” It is sufficient for the employer to discuss the following items with his or her employee:

  • How the employee believes he or she contracted COVID-19
  • The employee’s work and out-of-work activities that may have led to them contracting COVID-19
  • The employee’s work environment as it relates to COVID-19 exposure

After that, the employer is expected to use all reasonably available evidence to determine whether the COVID-19 illness was work-related. As an employer, you won’t be held liable for information that wasn’t readily available to you at the time of the determination. In this memorandum, OSHA also provides several instances in which you have evidence that may work in favor of work-relatedness. For example, if an employee contracts COVID-19 shortly after a lengthy encounter with a customer or coworker who has COVID-19, then their illness is likely work-related. The key is to make a reasonable effort of good faith in determining the role of workplace exposure. 

Related: 4 Frequently Asked Questions About Workers’ Compensation and COVID-19

How Can You Best Protect Your Business? 

The most successful way of reducing workers’ compensation claims regarding COVID-19 is to prevent workplace exposure to COVID-19 to the best of your ability. Any employees showing signs or symptoms of COVID-19 should be immediately identified and isolated. It’s not enough to simply remove them from the worksite — you must encourage them to seek medical assistance, if necessary, and also identify any other employees who may have come into contact with them. All of these measures should be included in what’s known as an infectious disease preparedness plan that also addresses worker absenteeism, disruptions to the supply chain, social distancing, and more. 

For more resources on creating a jobsite preparedness and response plan or understanding the newly enacted leave laws, visit our COVID-19 Resources page. If you have been issued a stop work order or are facing any other legal problem related to workers’ compensation, it’s time to contact one of our workers comp defense attorneys in Florida. It will make all the difference, especially navigating the complex workers’ compensation laws, to be proactive and work with one of our workers comp defense lawyers in Florida. You’ll avoid not only massive fines but potentially felony charges of insurance fraud. 

If you are in need of a professional Florida workers compensation defense firm, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.