Self-insured employers facing the threat of COVID-19 occupational safety disputes may choose to accept claims for infection workers, as exclusive clauses may provide better protection against costly lawsuits later, according to legal experts.
"Liability is scary because there are no caps," said Mike Fish, Birmingham, Alabama-based founding member of Comp Defense Fish Nelson & Holden LLC and former president of the National Workers' Compensation Defense Network, an alliance of comp defense attorneys. overseeing legislation
"Employers who weigh the risk can choose to have the doctrine of exclusivity," he said. "Liability disputes are stored everywhere."
In general, communicable diseases are not considered compensable in most states, although some accept such claims if there is a clear link between work and viruses ̵
"One of the obstacles (for workers comp) is the connection between their work and the virus," he said. "The second option for employees is a lawsuit if they felt that the employer intentionally placed them in an environment that caused harm."
Instead of holding on to years of expensive disputes, it may be possible to accept claims in the beginning. -insured employers who do not need permission from insurance companies, says Adam Brackemyre, Alexandria, Virginia-based vice president of government relations for the Self-Insurance Institute of America Inc., an association that promotes self-insurance and the internal insurance industry.
Employers "do not see as many COVID claims as they expected," he said. “All of these people test positive, but there was not much when it came to disability. In the worst case, it is a serious flu ”for some employees.
The Boca Raton-based National Council for Compensation Insurance wrote about widespread uncertainty regarding COVID-19 comp losses in its latest update in July, saying “the combined effect and direction of all direct and indirect COVID-19 related forces are unknown – no explicit adjustment for the pandemic has been made in this year's analysis at an overall or individual classification level. And few insurers or third-party administrators have released data related to claims, although available estimates show that the virus is not an expensive claim for most people.
Corvel Corp., a third-party administrator in Irvine, California, reported in July that COVID-19 claims resulting in hospitalization make up less than 5% of claims. In the same month, Concord, California-based third-party administrator Athens Insurance Service Inc. released a report that found that of all COVID-19 claims – most of which came from California medical staff – 2.7% of cases were hospitalized.
"Some (employers) are definitely crushing the numbers, and some may choose to treat claims as workers' compensation because it may be cheaper to pay the benefit than to contest it," Brackemyre said.
Under a comp system, an employer would pay wages – usually about two-thirds of the wage – and medical expenses.
Trent Oubre, Baton Rouge-based chair of the Louisiana Association of Self Assured Employers Legislative Committee and partner at Breazeale, Sachse & Wilson LLP, agrees that comp may be the way to go for some employers facing smaller, smaller complicated COVID-19 related claims. "If they do, they must proceed with caution," he said. The alternative – disputes – can, however, be more risky.
"It needs (employers) to evaluate their position now on how to respond to these allegations," says Oubre. "The safest way may be to keep them in check."
Wayne J. Fontana, New Orleans-based managing partner at Roedel Parsons Koch Blache Balhoff & McCollister LLC, said that some states – Louisiana, for example – deal with dispute risk by passing immunity laws that prevent employees from suing COVID-19 exposure at work. Employers in other states without such protection could face a "wild west for disputes" related to possible virus transmission in the workplace, he said.
His advice is to take the matter "from case to case." This "takes you out of a tort case, pays someone for several weeks' COVID absence and makes them sign one (disclaimer)," he said. Catalog