TWO YEARS OF COVID: HOW THE WORKERS’ COMP SYSTEM IS RESPONDING
We’ve previously written about the fact that work-related COVID can be covered by workers’ compensation and that essential workers who continued to work in person in 2020 and who contracted COVID should file for benefits. Unfortunately, far fewer workers filed for benefits at that time – and because there is a two-year time limitation to file a claim for workers’ comp benefits, the window to do so is starting to close for many of them. This is especially concerning given recent reports that show significant risk of “long COVID” among older workers – even those who were asymptomatic or only had mild symptoms at the time.
As the COVID virus continues to evolve, the workers’ comp system’s response appears to be evolving along with it. For essential workers who filed in 2020 or 2021, the Workers’ Comp Board generally accepted that if they were working in person during the pandemic and had a positive COVID test then their illness was probably work-related and should be covered by workers’ comp. Employers and insurance companies contested a high percentage of these cases – but overwhelmingly lost.
As the pandemic has advanced from wave to wave, the Board has begun to require a higher level of proof for workers with claims for work-related COVID. It is increasingly important that the worker be prepared to show either:
a specific workplace exposure with an onset of symptoms a reasonable time after that exposure and no other identifiable exposure; or
that they work in a COVID-prevalent environment (like a hospital) where there are many cases of COVID; or
that they work in workplace where there was an outbreak of COVID to which they were exposed; or
that they are in a public-facing job where they are exposed to many people every day (and that some of those people appeared to be symptomatic or were coughing or sneezing in the vicinity of the worker).
In addition, regardless of the type of exposure, it is also important for the worker to have a medical opinion stating that their illness was likely related to the work exposure.