COVID-19: Workers' Compensation

Josh Cunningham 5/13/2020

5 doctors in an operating room performing surgery

The COVID-19 pandemic has created countless challenges for state policymakers across the country. Among those is the role that workers’ compensation insurance plays in helping workers infected with the disease. Every state has its own unique workers’ compensation policy landscape. States apply varying coverage requirements and standards based on industry, occupation, and the size and structure of a business. Workers’ compensation is designed to benefit both employees and employers by providing reliable insurance coverage with predictable, timely payments and reduced legal costs. Beyond providing medical treatment at no cost to the employee, workers’ compensation also provides wage replacement benefits for lost wages resulting from time away from work. If a worker dies due to a qualifying condition, the worker’s family could be eligible for financial death benefits. Most states have a dedicated workers’ compensation court system where judges make the final decision on claims and benefits awarded.

Does Workers’ Compensation Cover COVID-19?

The answer is complicated. Generally, workers’ compensation does not cover routine community-spread illnesses like a cold or the flu because they usually cannot be directly tied to the workplace. Some states have made exceptions for certain workers who develop chronic illnesses, like cancer, resulting from repeated exposure to harmful materials and environments. According to the National Council on Compensation Insurance, prior to the COVID-19, at least 19 states had policies stating that when firefighters and other first responders develop lung and respiratory illnesses, those conditions are presumed to be work-related and covered under workers’ compensation. It is unclear if those existing policies would include COVID-19 illnesses.

The COVID-19 pandemic presents a unique circumstance where the many jobs that are not typically considered hazardous have suddenly become very dangerous for the workers. Workers deemed essential including health care workers, mass transit operators and grocery store workers are at a high risk of exposure to the virus while at work. But the more hazardous working conditions do not guarantee that a COVID-19 infection would be covered under workers’ compensation in most states.

State Response to COVID-19

States are taking action to extend workers’ compensation coverage to include first responders and health care workers impacted by COVID-19. A common approach is to amend state policy so that COVID-19 infections in certain workers are presumed to be work-related and covered under workers’ compensation. This presumption places the burden on the employer and insurer to prove that the infection was not work-related making it easier for those workers to file successful claims. Some employers and insurers have raised concerns that these presumption policies will increase insurance costs for employers at a time when businesses are already facing significant financial challenges.

Four states have used executive branch authority to implement presumption policies for first responders and health care workers in response to COVID-19. Executive actions in Illinois and Kentucky also provide additional coverage to other essential workers like grocery store employees. Additionally, Minnesota enacted legislation covering first responders and health care workers.

State Spotlight

In March, Washington state’s Department of Labor and Industries announced that health care workers and first responders will receive wage-replacement benefits and have all related health care expenses covered under the state’s workers’ compensation program when quarantined by a physician. Washington has a single publicly-managed insurance option that employers can purchase giving the state more control over the coverage offered to workers. Other essential workers in Washington who test positive for COVID-19 will be considered on a case-by-case basis. The state has established three criteria for evaluating these COVID-19 claims:

  • Was there an increased risk or greater likelihood of contracting the condition due to the worker's occupation (such as a first responder or health care worker)?
  • If not for their job, would the worker have been exposed to the virus or contracted the condition?
  • Can the worker identify a specific source or event during the performance of his or her employment that resulted in exposure to the new coronavirus (examples include a first responder or health care worker who has actually treated a patient with the virus)?

State Actions

NCSL is tracking legislation, executive orders and other administrative policy changes that directly address workers' compensation coverage of COVID-19.

Updated as of April 17, 2020. 

State

Status

Type of Worker With Presumption of Occupational Disease

Bill or Order Number
Alaska Enacted
  • First reponders
  • Health care workers
SB 241
Arkansas Executive Order
  • First reponders
  • Health care workers

*No presumption of occupational disease given

EO 20-19
California Executive Order
  • All workers who test positive for COVID-19 and who are not exclusively working from home
EO N-62-20

California

Pending
  • First responders
  • Health care workers
AB 664
California Pending
  • Workers employed to combat the spread of COVID-19
SB 1159
California Pending
  • Hospital workers
SB 893
Florida Admin. Policy Change
  • First responders
  • Child safety investigators
  • Corrections officers
  • National Guard service members responding to COVID-19
  • State-employed health care workers  
CFO Directive 2020-05
Florida Informational Memorandum
  • Reinforces the administrative policy change and informs insurance carriers that existing Florida law defines and covers occupational diseases. 
OIR-20-05M
Kentucky Executive Order
  • First responders
  • Health care workers
  • Military and National Guard
  • Domestic violence shelter workers
  • Child advocacy workers
  • Rape crisis center staff
  • Grocery store workers
  • Postal workers
  • Child care workers
EO 2020-277
Louisiana Pending
  • All essential workers
SB 475 
Massachusetts Pending
  • Paramedics
  • Emergency and urgent care health care workers
HD 4949
Massachusetts Pending
  • All essential workers
HD 5050
MIchigan Pending
  • All essential workers
HB 5758
Michigan Pending
  • First responders
  • Health care workers
  • Corrections officers
SB 906
Minnesota Enacted
  • First responders
  • Health care workers
HF 4537
New Hampshire Executive Order
  • First responders
Emergency Order #36
New Jersey Pending
  • All essential workers
AB 3998
New Jersey Pending
  • All essential workers
AB 3999
New Mexico Executive Order
  • Certain state workers and volunteers
EO 2020-025
New York Pending
  • First responders
SB 8117A
New York Pending
  • All workers at risk of exposure as part of their job
NY AB 10401
North Carolina Pending
  • First responders
  • Corrections officers
HB 1056
Northa Carolina Pending
  • All essential workers
HB 1057
North Dakota Executive Order
  • First responders
  • Health care workers
  • *Benefits limited to temporary wage replacement while in quarantine and health care treatments
EO 2020-12
Ohio Pending
  • First responders
HB 571
Ohio Pending
  • All essential workers
HB 573
Ohio Pending
  • Grocery store workers
  • Food processing workers
HB 605
Pennsylvania Pending
  • Workers employed by a life-sustaining business or occupation
HB 2396

Puerto Rico

Pending
  • All workers infected while performing authorized services
SB 1540
South Carolina Pending
  • First responders
  • Health care workers
  • Corrections officers
HB 5482
Utah Enacted
  • First responders
  • Health care workers
SB 3007
Vermont Pending
  • First responders
  • Health care workers
  • Corrections officers
  • Long-term care staff
  • Child care providers
  • Employees of pharmacies or grocery stores
  • Other workers with high risk of exposure
SB 342
Washington Admin. Policy Change
  • First responders
  • Health care workers
Press Release
Wisconsin Enacted
  • First responders
AB 1038