April 17, 2020
Member, Stoll Keenon Ogden PLLC
In light of the declared State of Emergency, Governor Andy Beshear recently signed an Executive Order expanding workers’ compensation benefits in Kentucky. The Governor’s Executive Order provides temporary total disability payments to workers who are directed to self-quarantine by a physician due to occupational exposure to COVID-19 during the period of self-quarantine. In order for the exposure to be considered “occupational,” there must be a causal connection between the work conditions and COVID-19. More specifically, the causal connection exists if the exposure to COVID-19 can be seen to have followed as a natural incident to the work given the nature of the employment.
Importantly, the Executive Order includes a list of occupations in which the exposure is presumed to be occupational. The list includes the following: employees of a healthcare entity; first responders; corrections officers; military; activated National Guard; domestic violence shelter workers; child advocacy workers; rape crisis center staff; Department for Community Based Services workers; grocery workers; postal service workers; and child care workers permitted by the Cabinet for Health and Family Services to provide child care in a limited duration center during the State of Emergency.
This week, the Kentucky Labor Cabinet issued formal guidance regarding this expansion of workers’ compensation benefits. According to this guidance, the expansion of workers’ compensation benefits is to be applied prospectively from April 9, 2020. Further, any temporary total disability benefits payable pursuant to the Executive Order will be offset by any emergency FMLA benefits (and likely paid sick leave) paid pursuant to the federal Families First Coronavirus Response Act, as well as any unemployment benefits paid to the worker during the period.
A worker whose removal from work falls within the occupational exposure presumption is eligible for workers’ compensation benefits immediately upon removal from the workplace by the physician. In that situation, the employer may only denial payments if there is evidence of a good faith basis for the denial. A worker who does not work in one of the fields in which occupational exposure is presumed must establish the removal is due to occupational exposure. By way of example, a restaurant worker who is removed from work by a physician based on exposure to COVID-19 without further explanation has not established the required “occupational exposure” and is not entitled to benefits pursuant to the Executive Order.
The Workers’ Compensation Board of Indiana (“WCB”) continues to recognize that an employer must make the initial determination as to whether workers contract COVID-19 during the course and scope of their employment. The WCB has defined the vulnerable segment of the workforce to include first responders and health care providers, as well as others directly involved in the provision of services to those exhibiting symptoms of COVID-19. Jobs requiring workers to closely interact with many people in a public setting are also considered to be vulnerable to COVID-19 exposure.
In that regard, the WCB encourages employers to prospectively decide whether any workers in a vulnerable segment of the workforce will be presumptively covered under the provisions of the Indiana Workers’ Compensation Act should any of the following occur: (a) worker is quarantined at the direction of the employer due to a confirmed or suspected COVID-19 exposure; (b) worker receives a COVID-19 diagnosis from a physician without a test; (c) worker received a presumptive positive COVID-19 test; or (d) worker receives a laboratory-confirmed COVID-19 diagnosis. If employers make such prospective determinations, the employers are to notify both their workforce and workers’ compensation insurance carriers and administrators of those determinations.
Employers should promptly report any possible occupational COVID-19 claims to their workers’ compensation insurance carrier for further handling.
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