by Jessie Arnold

It is widely known that nursing homes have been hit the hardest by COVID-19, the novel coronavirus, but attention has been on the residents rather than the employees. The disaster first hit a nursing home in February of 2020. Not only did a third of the residents in Kirkland, Washington show symptoms at that time, but 25 of the 180 staff also had symptoms. Deaths of residents and employees are often lumped together in the numbers (and consistently represent around 40% of deaths nationwide, taken together). It appears that over 750 employees have died from COVID. From a legal perspective, lumping the deaths together is unhelpful, because the causes of action, and the ethical quandaries, differ between these two groups of people.

Different Legal Issues for Nursing Home Staff and Residents Falling Ill from COVID

As discussed herehttp://nhqualitycampaign.org/risk-management-for-nursing-homes-dealing-with-covid-19-outbreak, many suits for residents of nursing homes will be based on common law tort theory. This is despite attempts by states to grant some immunity to nursing homes for COVID illnesses and deaths. In other places, it will also depend upon state nursing home resident protection statutes.

Nursing home staff lawsuits will be based on other laws. Often, staff must rely on workers’ compensation statutes. These laws cap the amount families can receive for a death.  Even as of June 2020, the frontline staff was beginning to file worker compensation claims.

There will be some empathy for the workers as the media is full of stories of workers putting their lives on the law for exceedingly low pay and exhausting, long shifts that put workers’ health in jeopardy.

But the success of these claims will be highly state-specific.

Workers’ compensation legislation and regulations

Workers’ compensation provides predictable payments, wage replacement benefits, medical treatment, and in some cases, death benefits. Most states have a court dedicated to workers’ comp claims.

Workers’ comp is generally for injuries or illnesses distinctly associated or peculiar to the industry of the worker. Historically, common communicable illnesses like colds and flu have not been covered by workers’ compensation. Coronavirus likely would have been considered to be in this category, but many states have proposed legislation that creates a presumption that workers in certain classes, like first responders and health care workers, the groups most likely to file workers’ compensation claims, contracted the virus at work. Each state is different as to how this presumption can be rebutted; in some states only reasonable doubt is required, which in the case of COVID is a low standard. Still, these laws at least attempt to recognize that praising first responders as heroes doesn’t mean much if we don’t treat them as such.

For example, the State of Illinois passed legislation affording front-line workers a “rebuttable presumption” that a COVID-19 diagnosis is work-related. No doubt, nursing homes will work fiercely to rebut this presumption because of the precedent it will set. A rebuttable presumption is not a guarantee that a case is going to win.

Another example is the State of Ohio. The general policy in Ohio has been to cover infectious diseases when the employee is required to come into contact with infectious people. Even without the legislation proposed by state Democrats, which hasn’t yet been taken up, to make the claims process easier, nursing home worker claims would be covered, but the employee has to show the disease was contracted in the course of her employment.

Employees are usually advised to consult workers’ compensation attorneys since nursing homes have lawyers protecting them against claims. While states worry about the cost to businesses, there will continue to be attrition in the industry if workers aren’t treated fairly.

Stay ahead of legislation in your state through the news and the National Council of Compensation Insurance (NCCI) website. 

                           How does a workers’ comp claim operate?

Procedures for workers’ comp claims differ somewhat jurisdictionally. As an example, we can look at how it works in the State of California.

1. Worker fills out claim form and gives it to the employer
2. The employer fills out their required fields
3. The claim is given to a claims administrator (sometimes this is an insurance company)
4. Within 90 days, the claims administrator accepts or rejects the claim
5. If the claim is accepted, medical bills, wages, lost earning capacity, etc must be paid immediately
6. If the claim is denied, workers can challenge the decision (advisedly with the help of an attorney).

Risk Avoidance for COVID death claims by workers

What steps can nursing homes take to avoid an abundance of workers’ comp claims, and in some instances, to refute them?

Wellness checks

To help reduce the risk of an outbreak and protect long-term care residents, conduct routine employee wellness checks. It is a good idea to conduct temperature checks for incoming employees, but don’t allow such tests to cause you to let your guard down. Asymptomatic transmission remains a problem. Although this may seem like a time and resource drain in difficult times, when it comes time to review your workers’ compensation rates, you will be glad you made the effort. Not only will catching workers’ illnesses early protect them and your residents by quickly identifying those who are exhibiting symptoms, you will reduce the likelihood of a workers’ compensation claim. Some states have mandated periodic testing of onsite employees for long-term care and retirement communities, so be sure to check your local regulations.

The Role of Releases

It is tempting to require employees to sign a release, waiving any claims against the nursing home should the worker acquire COVID. However, some rights can’t be waived, and if the government allowed employers to require waivers to workers’ compensation claims, it would defeat the purpose of the law. You cannot waive an employee’s right to workers’ compensation benefits or a safe workplace. Some workers’ compensation brokers suggest that you consider creating an acknowledgment or adding language to your employee handbook that states you will follow CDC guidelines and take other necessary precautions to prevent the spread of the virus at your facility. “In exchange, your employees will acknowledge that they will do their best to comply with social distancing, wearing masks, and staying home if they experience symptoms.” Without action, it is unclear how effective this sort of “social contract” really will be, but it may provide one layer of defense.

Providing Adequate Staffing

It is essential both for workers’ compensation defense and resident lawsuits that you maintain adequate staffing levels.

Nursing homes face a difficult conundrum during COVID. You need to maintain appropriate staffing levels while still taking precautions with the staff. Staff members need to be tested, and quarantined if they have a positive test or show symptoms. Staff needs to be given paid time off so that they are encouraged to take time off to heal when necessary. Anything less will look like you are intentionally or negligently creating dangerous working conditions and it will be easier to link staff illnesses to your actions. Hiring temporary staff can help bridge the gap while permanent employees are in quarantine or home sick. The more employees are treated like human beings, and paid as such, the less likely they are to lash out if they get sick. In addition to protecting yourself from a worker’s comp case, these steps will help with employee retention.

Contact tracing

Another way to rebut workers’ compensation presumptions is with contact tracing. Contact tracing allows you to identify the people who may have come in contact with the infected person. If you can determine that your employee contracted the virus from outside exposure, a workers’ comp case will be unsuccessful. Several companies offer contact tracing apps and software; having a formal procedure in place will assure consistency and reliability. Also, it provides documentation, which will be helpful if a claim is brought. The procedure will also help you identify which colleagues and at-risk residents the employee interacted with during the virus incubation period so they can take the proper precautions.

Impact on workers’ compensation rates

Nursing homes may see an increase in workers’ compensation rates. This is the first highly communicable disease that has been covered by workers’ comp. It is being covered suddenly, without the industry having charged appropriate rates for the risk, so it is likely they will need to raise rates into the future, especially as claims rise.