Keenan Briefings

Briefings

COVID-19 and Workers’ Compensation Q&A

January 29, 2021

As we leave 2020 behind and roll into 2021, COVID-19 legislative and regulatory changes and communications within the industry have resulted in the reemergence of questions specific to how COVID-19 impacts various aspects of workers’ compensation. Best practices and recommendations continue to change in this fluid environment. The invention, and now distribution, of the COVID-19 vaccine has raised new questions about potential exposures and risks that no one could have anticipated just a year ago.

Through the evolution of COVID-19 and the new potential exposures that have surfaced, the same foundational questions continue to be raised, which this Briefing is intended to help answer.

DWC-1 Claims Form and Compensability:

Q1: Should I offer the Employee Claim Form (DWC-1) for COVID-19?

Answer: Cal/OSHA requires that employers inquire and investigate whether a COVID-19 case is work related whenever an employee presents with COVID-19. So, independent of workers' compensation standards, an employee must be asked where he or she thinks the disease came from. Such inquiry might lead to statements by an employee invoking the obligation to provide a claim form.

Engage the employee and ask, “Have you received a positive COVID-19 test and where do you think you contracted COVID-19? It is also recommended that the employer contemplate if the employee has worked at the employer’s place of employment at the employer’s direction during the 14 days prior to the positive COVID-19 test or diagnosis. Note: The employee’s home is NOT the employer’s place of employment for considerations of COVID-19 illness.

Q2: How do I know when to offer the DWC-1?

Answer: If the employer inquiry and investigation concludes that COVID-19 was contracted at work, or if the employee asserts they contracted the disease from work or if the employee requests a DWC-1, it must be provided within one working day of receiving notice or knowledge of an injury or illness when the injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid.

Q3: Is the provision of the DWC-1 an admission and/or acceptance of a Workers’ Compensation Claim?

Answer: No. The claims administrator will determine if the injury or illness arose out of and in the scope of the employment.

Q4: Are all COVID-19 claims work related?

Answer: No. While some COVID-19 claims are subject to legal presumptions, all claims will be investigated to determine compensability and the facts of each case will determine if the claim is delayed, denied or accepted.

Q5: Can employers require employees to be vaccinated?

Answer: Maybe. The Equal Employment Opportunity Commission (EEOC) gives no specific statement mandating vaccine as a condition of employment. However, it is implied as the EEOC has set standards when an employer does so. Further guidance is expected, but as of this writing there is no clarity. Additionally, it is important to remember that EEOC is a Federal agency and leaves question how this may be interpreted in California. Furthermore, consideration should be given for exceptions due to medical conditions or religious beliefs. It is recommended that if an employer decides to mandate the vaccine for employment or return to work, legal advice should be sought.

Q6: If an employee is vaccinated for COVID-19 and suffers an adverse reaction, is that a workers’ compensation exposure and should a DWC-1 Claim Form be provided?

Answer: The answer will depend upon each specific situation. If the employer administers, requires/mandates, encourages, facilitates (pays for, schedules, hosts, etc.) or otherwise benefits from an employee receiving the COVID-19 vaccine, and there is an adverse reaction, it may be considered a compensable workers’ compensation injury/illness. In many situations, the adverse reaction will be minor and fall under the definition of “First Aid” (defined as no lost time from work and any one-time treatment, and any follow up visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injury, which do not ordinarily require medical care). Nonetheless, if an employee asserts that their adverse reaction to the vaccine is work related, or if they request a DWC-1 Claim Form, one should be provided within one working day.

Q7: Would a claim that was a result of an adverse reaction to a COVID-19 vaccine fall under SB 1159 (would the presumptions and outbreak rules apply)?

Answer: No. SB 1159 specifically applies to COVID-19 tests and diagnoses. A reaction to the COVID-19 vaccine would be handled as any claim would pre-SB 1159. The claims administrator would have 90 days to either accept or deny the claim. If there is any compensable lost time from work, the three-day waiting period for temporary disability would apply.

Q8: What Body Part, Nature and Cause coding should be used when submitting a claim to Keenan?

Answer: As claims are reported to Keenan, through P&C Bridge and Ultra ClaimsONLINE, the following codes should be selected:

  • Body Part - Other:  Body Systems
  • Nature – SPC: Inflammation
  • Cause – Misc: Other than Physical Cause (90)

COVID-19 Positive Test Reporting and Outbreaks under SB 1159:

Q1: Do I have to report all positive COVID-19 tests?

Answer: Yes, all COVID-19 test results must be reported to your workers’ compensation claims administrator within three business days, IF the employee was on the employer’s site in the 14 days preceding the positive COVID-19 test. These test results must be reported even if the employee contracted the disease outside of work.

Exception: Employees working in Health Facilities as defined under Section 1250 of the Health and Safety Code.

Q2: What is an “Outbreak”?

Answer: As defined under Senate Bill 1159 at Labor Code 3212.88, an “outbreak” applies to employees and exists if within 14 calendar days one of the following occurs at a specific place of employment:

  • If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment test positive for COVID-19.
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to the risk of infection with COVID-19.

Exception: Employees covered under Labor Code 3212.87 are not part of the outbreak criteria. Employees covered under Labor Code 3212.87 include but are not limited to; active or volunteer firefighters, fire and rescue services coordinators, Peace Officers as defined under Section 830.1 of the Penal Code, employees who provide direct patient care and work at a health facility, employees who provide direct patient care at home health agency.

Q3: What is a “Rebuttable/Disputable Presumption” when there is an outbreak?

Answer: When an “outbreak” exists, it is presumed that the employee’s illness arose out of and in the course of employment and is compensable. HOWEVER, it may be controverted by other factors such as; evidence of measures the employer has put in place to reduce the potential transmission of COVID-19 in the place of employment and evidence of an employee’s nonoccupational risks of COVID-19 infection.

For those employees covered under Labor Code 3212.87 and who are not covered by the outbreak rules (as outlined in question 3 above), the rebuttable presumption applies upon positive test results as an alleged result of work without consideration of an outbreak.

For additional assistance, or information, please reach out to your Keenan Risk Management Analyst.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.