GREY & GREY
COVID-19 AND MENTAL HEALTH
According to the Kaiser Family Foundation, nearly half of Americans report that the COVID-19 pandemic is having an impact on their mental health. Calls to mental health hotlines and specialists have skyrocketed across the country. And the problems are even more acute for health care workers and essential workers who were on the front lines.
All of this raises the question: Will the workers’ compensation system cover mental health issues related to COVID-19?
In general, workers’ compensation covers injuries that “arise out of and the course of employment.” An injury may be physical or psychological. In addition, the law covers injuries that develop later on as a result of the original injury. These are called “consequential” injuries, and the mental health consequences of a physical injury or injuries are routinely included in workers’ compensation claims.
However, where the claim purely for mental illness – not related to an actual physical injury – as a result of a work event or situation, the picture becomes more complicated.
First, the law specifically excludes coverage for “solely mental” injuries “based on work-related stress” if the injury is based on a “good faith” employment decision. That would include things like termination, demotion, transfer, etc. It is possible that some employers (like hospitals) may argue that the circumstances workers were put in to respond to the pandemic were good faith employment decisions and that mental injury claims are therefore barred by law. Whether this is a legitimate defense will have to be decided by the Workers’ Compensation Board and perhaps eventually the Courts.
For mental injuries that are not related to a good faith employment decision, the law currently requires the worker to prove one of two things: a specific extraordinarily traumatic situation that the worker was closely involved with; or being in a work situation that is far more stressful than is typical for that type of employment. These requirements come from the legal requirement for an “accident” as a basis for a workers’ compensation claim – the events must be out of the ordinary for the worker’s employment.
The rule for cases involving a traumatic event is fairly straightforward: the event must be something that most people would find traumatic, and the worker must closely enough involved that it is reasonable for him or her to have a psychological reaction. One example would be responding to the scene of a terrible accident involving a co-worker; another would be just missing being involved in an accident but witnessing it happen in front of you.
The rule for work-related stress claims is more complex. Because the law measures “extraordinary stress” by comparing it to the nature of the person’s job, the more stressful the type of work is the less likely the worker is to succeed in this type of claim. The test is not how the worker perceives the stress; it is how the Board views the nature of the person’s job and whether it accepts that the worker’s situation is greater than the stress that others in that kind of work are used to.
Healthcare workers were perhaps uniquely affected by COVID-19. Many fell ill, and many others are or will suffer mental health consequences as a result of their work during the pandemic. At this point it is unknown whether the Board will view this as unusual or as typical of their jobs – and the answer to that question will decide whether or not their claims are covered.
As with any other workers’ compensation case, mental health claims require medical proof connecting the injury to the workplace situation. The more details the health care provider has about the person’s work situation in relation to the pandemic, and how it compares to their work situation in normal times, the better positioned he or she will be to provide an informed opinion about the connection between the workplace situation and the illness.
Once a workers’ compensation case is established for a mental injury, wage loss and medical coverage for disability and treatment related to the injury are covered to the same extent as any other kind of injury. As with other cases, wage loss benefits can potentially continue for many years, and medical coverage can continue for as long as necessary – sometimes for life.