- 1. What Does Workers’ Compensation Provide?
Workers’ compensation insurance provides compensation to employees who suffer work-related accidents or illnesses. It also protects employers from lawsuits by employees who were injured at work.
An employee who qualifies for workers’ compensation is eligible to have medical expenses covered (including prescriptions), and to receive payments that include a percentage of gross average weekly wage. For a temporary total disability (which may include COVID-19), workers’ compensation provides a 60% wage replacement, up to the current maximum of $1,431.66 per week.
2. Does Massachusetts Workers’ Compensation Cover COVID-19?
Whether workers’ compensation in Massachusetts covers cases of COVID-19 is handled on a case-by-case basis, and depends on the facts and circumstances. In the ordinary case, a worker must prove through a preponderance of the evidence that he or she contracted the illness at work to become eligible for worker’s compensation. Generally, however, workers’ compensation does not cover routine community-spread illnesses like viruses because they usually cannot be directly tied to the workplace.
3. When Are Viruses Typically Covered?
Massachusetts law at M. G. L. c. 152, Section 1(7A) provides that “’Personal injury’ includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment.”
For healthcare workers whose place of employment may inherently include exposure to COVID-19 cases, proving an employee contracted the virus at work is less difficult than for those working in other establishments who are only incidentally exposed to the virus. Where COVID-19 exposure is only incidental to the workplace, such as a factory, employees are typically not covered by workers’ compensation because the nature of their jobs would not typically qualify them.
Massachusetts is considering proposals that may assist certain essential workers infected with COVID-19 in receiving workers’ compensation. Massachusetts House bill 4739, for example, if passed into law, would afford certain essential workers with a presumption that they contracted the virus at work. Essential workers refer to employees of any “essential business” identified in COVID Order No. 13, March 23, 2020, such as physician’s offices, hospitals, nursing or rest homes, assisted living facilities, pharmacies, grocery stores and “any other essential business” that includes contact with the public. At this writing, such a proposal has not become law.
4. What Protections Do Employers Have From Liability If There is a COVID-19 Case in the Workplace?
As Massachusetts law now stands, workers’ compensation insurance will generally not cover the effects of the virus if exposure to COVID-19 is not an inherent feature of the workplace. Outside of healthcare workplaces, and with few other exceptions, workers will not generally be covered for workers’ compensation if they contract COVID-19 at work.
Some employers have considered curbing their risk of employee lawsuits by having employees sign waivers of employer liability for COVID-19 in the workplace. Because of the uneven bargaining power between employers and employees, however, releases are generally against public policy and would be unlikely to protect an employer.
5. What Protections Are There for Employers?
Any employer that has not complied with applicable COVID-19 guidelines for a safer workplace, may be open to lawsuits for negligence if COVID-19 cases arise in the workplace.
At this time, Congress is considering legislative measures to ameliorate the risk of liability to employers from employee lawsuits, but the details are still under discussion. In the meantime, employers should be following CDC and OSHA safety precautions, as well as state guidance on opening the workplace.
About the Author: Evelyn Haralampu
Evelyn Haralampu is a partner at Burns & Levinson. She specializes in assisting businesses, executives, and non-profit and governmental organizations in designing employee benefits programs and executive compensation to help clients meet their objectives, while saving and deferring costs through tax efficiencies. Evelyn has served on the ABA’s Subcommittee on Government Submissions, recommending regulatory policies to the IRS, and is a member of the Tax Council of the Massachusetts Bar Association, which influences the development of tax legislation in the Commonwealth. She can be reached at firstname.lastname@example.org or 617.345.3351.