This question has come up a lot so I want to cover a couple of basics. In general, a worker’s only redress for an injury at work is through the Workers Compensation policy. Except for a showing of serious and willful misconduct on the part of the employer and a few other exceptions, the owner of the practice is not personally liable for on the job injuries.
Now, that being said, before May 8, 2020 I would have said that it would have been incredibly difficult for an employee to show that they got COVID while on the job. With such a long incubation period, asymptomatic carriers of the disease, and difficulty in tracking the many interactions we all have even in quarantine; my best estimate would have said that very few claims would be covered under worker’s comp plans. However, on May 8, 2020 Governor Newsom issued an executive order that instituted the presumption that anyone with a confirmed case of COVID 19 who has worked outside their home from March 19, 2020 to July 5, 2020, will have contracted the disease at work; triggering their worker’s comp policy. That being the case, below are some examples of how liability will play out.
If the Employer did not follow preventive protocols?
This is one of the few ways that an employer can invalidate his/her worker’s compensation policy. The policy will not apply if the employer conducts serious and willful misconduct. What does that look like in this circumstance? It’s difficult to say because these cases have not been litigated yet. But serious and willful misconduct could include not having any protocols in place at all, disobeying basic provisions of the local county health order, or failing to provide basic PPE for employees.
Another issue where the worker’s comp policy can be invalidated is where the employer conceals a hazard from the employee. This could look like an employer keeping a staff member working while the employer knows that the employee is infectious. Or concealing that a patient has COVID 19 and instructing staff to work with the patient.
In call cases with an employee who has an active worker’s compensation claim, consult an attorney before terminating that employee. Terminating them during an active claim may trigger retaliation claims.
If you need help navigating any of these issues, email me HERE or set up a time to talk HERE.
