While much of the federal workplace safety guidance remains voluntary, states can mandate the guidance and add stricter requirements. States have largely accomplished this through governors’ executive orders.
- Washington Governor Jay Inslee issued the nation’s first COVID-19 state emergency order in February 2020 and has since issued several other proclamations. In April 2020, Inslee issued a proclamation relating to high-risk workers. The order prevents all employers, public or private, from failing to provide reasonable accommodations to high-risk workers, as defined by the CDC, that protect them from risk of exposure to the COVID-19 disease on the job. If a safe workspace is not feasible, qualifying workers are permitted to exhaust all available accrued leave without adverse employment action.
- Minnesota Governor Tim Walz issued an executive order in May 2020 reaffirming an employer’s obligation to provide reasonable accommodations to qualified workers with disabilities, including providing protective gear. The order also specifies that workers have the right to refuse to work under conditions that they, in good faith, reasonably believe present an imminent danger of death or serious physical harm.
- Massachusetts Attorney General Maura Healey in April 2020 issued guidance, Rights of Disabled Persons to Accommodations During COVID-19 Crisis, laying out reasonable accommodations that may be needed during the pandemic.
In addition, some states have created specific health and safety guidelines for employers to follow. Virginia categorizes professions into four tiers of risk based on the level of exposure those in each profession are expected to experience. For example, a lab technician handling COVID-19 test samples would likely be categorized as “very high” risk, while someone working remotely would fall into the “lower” risk tier. State occupational safety and health regulations are tailored to each category.
California created an employer handbook outlining safety and health precautions to protect workers during the COVID-19 pandemic. The state published additional guidance tailored to 39 separate industries.
Paid Sick Leave
Prior to the pandemic, 13 states had mandated private-sector employers provide paid sick leave benefits to employees. In response to the 2020 COVID-19 outbreak, New York enacted legislation requiring large employers to provide 14 days of paid sick leave to any employee placed under a quarantine or isolation order. Mid-size employers must provide at least five days of paid sick leave. Small employers are not required to offer paid leave but must maintain a worker’s employment status for the duration of their quarantine.
Colorado also enacted legislation requiring employers to provide at least one hour of paid sick leave for every 30 hours worked. The bill also expanded upon the paid sick leave requirement in the FFCRA by applying it to businesses of all sizes. In addition to the legislative response, the governor signed an executive order guarantying up to four days of paid sick leave to workers in select industries who test positive for COVID-19. The executive order expired in July 2020.
Worker’s compensation emerged as a tool to protect workers infected with COVID-19 at the workplace. 17 states granted certain workers a rebuttable presumption of coverage under state workers’ compensation laws. This means that for eligible workers, a positive COVID-19 diagnosis is presumed to have occurred in the course of their employment and therefore qualifies for coverage under their employer’s workers’ compensation insurance policy. Rather than having to prove the infection occurred at the workplace, the burden is on the employer to prove that it did not. Workers’ compensation coverage brings a number of worker benefits including job protection, replacement wages for time missed and free medical treatment and rehabilitation.
In many cases, state presumption policies were limited to workers with high levels of exposure like frontline medical workers and first responders. Vermont provided a presumption to all essential workers as defined in the state emergency orders. California took it a step further with an executive order providing a presumption of coverage to all workers not working remotely and who test positive for COVID-19.
Like many states, Illinois responded to the COVID-19 pandemic by looking for ways to protect workers with high exposure to the virus at the workplace. One approach Illinois pursued sought to provide a rebuttable workers’ compensation coverage presumption to workers defined as “essential” under the state’s COVID-19 emergency order. In April 2020, the Illinois Workers’ Compensation Commission adopted an emergency rule change granting the rebuttable presumption to all essential workers. At the time, Illinois was the first state to extend this coverage to such a broad range of workers.
This administrative action prompted a swift legal challenge from two organizations representing industries directly impacted by the rule change—the Illinois Retail Merchants Association and the Illinois Manufacturer’s Association. Retail and manufacturing industries employ large numbers of essential workers. They argued the rebuttable presumption policy created a substantial burden on employers because COVID-19 is highly contagious, making it difficult to establish whether an infection occurred at the workplace or not. A flood of workers’ compensation claims could lead to increases in the workers compensation insurance premiums that employers are required to pay. The state withdrew the rule change following an injunction from a state court over concerns that such a change required legislative approval.
Following the legal setback, the state legislature stepped in and enacted a bill in June 2020 providing a rebuttable presumption to essential workers. The legislation also grants line-of-duty death benefits to certain first responders who die of COVID-19. To ease concerns from businesses about spikes in workers’ compensation rates, the legislation prevents COVID-19 claims from being used to affect an employer’s insurance experience rating.
The long-term impact of rebuttable presumption policies like Illinois’ is yet to be known. To date, 90% of COVID-19 claims nationally have been small-dollar claims with negligible impact on the overall workers’ compensation system, according to the Claims Journal. The National Council of Compensation Insurers notes that the full impact COVID-19 will have on workers’ compensation will largely depend on the number of COVID-19 claims that result in permanent disability requiring large wage benefit payouts.