By Joseph Dore, President, USBenefits Insurance Services, LLC
On occasion, employers and/or employees may be unsure if an injury or illness (injury) can be considered work related.* The short definitions for the two insurance products are:
- Workers’ compensation provides benefits to employees when they get injured at work or suffer a work-related illness. Further, this coverage is mandatory in most states.
- Health coverage helps pays for non-work-related medical expenses. The Affordable Care Act (2014) requires that all Americans carry minimum healthcare coverage.
It is common that, unless an injury occurs at work, the normal reaction is to utilize the employee’s health benefits. However, there might be circumstances where an injury might be work related and not recognized accordingly. Why is this important? There are benefits in workers’ compensation that are otherwise not offered in the health benefits coverage. Workers’ compensation not only covers the medical expense, but also covers:
- Loss wages for being off work due to the injury.
- Disability if the injury causes any permanent disabilities.
For the injured worker, another difference with workers’ compensation is there are no copays, deductibles or balance billing for the employee. The financial responsibility falls upon the insurance carrier or, if self-insured, the employer
For the employer, it’s the workers’ compensation “exclusive remedy” doctrine, which makes this insurance coverage the injured worker’s sole remedy. While there are exceptions and this is not absolute in all jurisdictions, in general, workers’ compensation is a “no fault” system. What does this mean? An employee does not need provide evidence of fault to receive the benefits outlined earlier. In exchange, employers are given immunity from lawsuits from the injured worker that involve compensatory damages outside what the workers’ compensation system offer, or punitive damages. This might be an important consideration given that the Federal Government tried to mandate workplace vaccinations, which some employers have implemented. Some states are now expanding the workers’ compensation legislation to cover employees who were required to get vaccinated by their employers.
At present, there is scant guidance from the courts regarding employees who contract COVID-19 while they are working. As such, it is difficult to determine how employment related COVID-19 cases will be handled.
At present, some states have passed laws that exposure to COVID-19 creates a presumption that a COVID-19 related illness is covered under workers compensation. Employers covered by the presumption are treating these cases as workers compensation cases. In states without the presumption, or for those outside the presumptive class (those who are not first responders or medical personal), there does not appear to be a reported decision by a court that a COVID-19 related illness is covered under workers compensation. That is not to say that there are no cases. It does seem clear that it is difficult to establish the necessary level of proof to link the illness as being in the scope and course of employment.
The other employment related COVID-19 issue that is gaining traction in the courts is that if an employer knowingly, intentionally, or recklessly places an employee in a position of enhanced risk of contracting COVID-19, and the employee does contract COVID-19, workers compensation insurance may not shield the employer, and the employer may have liability if there is a down-stream infection of another individual, such as a family member.
However, if unsure which insurance coverage applies, we recommend that you seek guidance from your claim administrator, insurance broker and/or attorney.** As part of USBenefits Insurance Services’ claims management process, we take extra measures to evaluate whether a claim falls within our coverage and/or workers’ compensation as a form of risk management to protect our customers’ interest.
*This article is not intended to persuade an employer or employee to pursue one form of insurance over another, but rather explain the benefits of workers compensation if the coverage is appropriate.
**It is important to note to only file a workers’ compensation claim if the injury is work related or is suspected to be work related. Filing a fraudulent workers’ compensation claim is a crime and punishable under the law.
