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Covid and Workers Comp

J. Bradley Klepper
Attorney at Law

One of the things about being a lawyer is you get asked questions. A lot of questions. And by a lot of questions, I mean A LOT OF QUESTIONS.

Some of them are straight forward and easy to answer. For example:

Q: Why are you short?
A: Crappy genetics


Q: Why are you fat?
A: I like sandwiches.

However, other questions are not so straight forward. And any good lawyer will tell you that each and every answer to the “not so straight forward” question begins with two words. They are….”it depends.”
So the article today is going to deal with one of the questions I have been getting asked a lot recently.

Q: Is COVID-19 covered as a workplace injury?
A: It depends.

In order to truly answer that question you need to know the law of each and every state. Since the outbreak of COVID-19 more than a dozen states have made some modifications to their workers comp laws so that front line workers (nurses, doctors, etc.) would be presumed to have contracted the virus as work. A dozen or more states, including Michigan, Illinois and Utah have made such changes.

The word “presumed” as used has huge implications. Specifically, it shifts the burden of proof from the claimant to the employer. Now the employer must prove that the claimant did not contract the virus at work. This is a big deal.

Of course, simply because some states have added this presumption does not mean it always works the same way. There can be huge differences between states. Some states have only extended the presumption to hospital or emergency room workers. Others have included all workers who are required to interact with the public. Would a truck driver fall in this category? I am not sure.

On the flip side, some states, like New York, have not made any changes to their laws. Accordingly, the workers will need to show that they contracted the virus on the job. With a virus as contagious as COVID-19 that is a significant challenge. How do you show you were infected while on the job or not at the grocery store or from the handle of the gas pump at the station.

Even in states where the law has not been modified to create a presumption for workers, a few insurers are accepting claims. Of course, this will likely not last forever as the long term medical effects of COVID-19 and the costs of treating such claims are still unknown. Quite simply, insurers are reluctant to grants these claims as they do not want to be on the hook long term for additional medical treatments.

Will long term care require annual check-ups? Booster vaccines? The answer is unclear and carriers are reluctant to grant such claims without knowing the endgame.

So at the end of the day there is no bright line answer about whether or not COVID-19 is covered under workers comp laws as a workplace injury. The virus is too new and the law is too fluid. In fact, I suspect that between the time I write this article and publication additional states will propose changes that will either create a presumption in favor of the claimant or expressly deny such presumption in favor of the employer.

We are living in strange times and just as our daily lives have been changed by the pandemic so will how we deal with similar virus in the future. Medical care has changed. Work environments have changed. How we interact with each other has changed. And, eventually, the laws will change to address this virus and any future virus.
If you want to know how future laws will change the answer is easy…….it depends.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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Covid , Workers Comp


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