Regulatory, legislative, and guidance updates – federal
Expansion of the federal Public Safety Officers’ Benefits Program (PSOB)
The new act, Safeguarding America’s First Responders Act of 2020, creates a general presumption that a public safety officer who dies or becomes permanently disabled from COVID-19 or related complications sustained a personal injury in the line of duty. It extends the benefit payments of PSOB, a one-time lump sum payment of $359,316 and/or monthly education assistance of $1,224, to the children or spouse of a deceased or permanently disabled first responder.
While the program already covers infectious diseases, the difficulty of proofing the virus was contracted on the job made it difficult to receive benefits. President Donald Trump signed the law on August 14 and the presumption runs from Jan. 1, 2020 through December 31, 2021. It will require diagnosis or evidence that the officer had the virus at the time of death and that the diagnosis came within 45 days of their last day on the job.
Executive order makes permanent telehealth rules, excluding PT
The expansion of telehealth services in workers’ compensation beyond the pandemic got a boost from an executive order that makes permanent an emergency funding measure, which temporarily waived restrictions on 135 services delivered by telehealth to Medicare beneficiaries. The order is of particular interest to Texas and other states that tie workers’ comp medical fees to the methodologies and values used by Medicare.
Although this was lauded as an acceptance of telemedicine, many were disappointed it did not permanently include physical therapy and rehabilitation as telehealth services. Since therapists are not listed as eligible telehealth providers in the federal Social Security Act law that governs Medicare, the Centers for Medicare and Medicaid (CMS) concluded it did not have the authority to do so.
Public comments are due by October 5 on the proposed rules .
CDC: Guidance for employers on COVID-19 case investigation, contact tracing, workplace violence in retail, and more
In the guidance, Case Investigation and Contact Tracing in Non-healthcare Workplaces: Information for Employers, the CDC notes, “Quick and coordinated actions, including case investigation and contact tracing, may lower the need for business closures to prevent the spread of the disease.” It offers tips on how employers can partner with health departments and work with their employees to control the spread of the virus.
Intended for use by employers and employees in retail, services, and other customer-based businesses, Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses, offers strategies to limit violence towards workers that may occur when businesses put in place policies and practices to help minimize the spread of COVID-19 among employees and customers.
Other new guidance relates to testing, schools, pediatric patients, laboratory personnel, veterinary clinics, and transit station workers.
For OSHA updates, see the OSHA Watch section.
Regulatory, legislative, and guidance updates – state
Georgia joined several other states in enacting a law, the Georgia COVID-19 Pandemic Business Safety Act, designed to protect healthcare facilities, businesses, and other entities from civil liability related to the spread of COVID-19, except in limited situations where there is a showing of gross negligence or intentional misconduct. The law went into effect August 5, 2020 and extends to July 14, 2021.
Nevada passed legislation that provides immunity to certain businesses, governmental entities, and nonprofits from civil liability for personal injury or death resulting from exposure to COVID-19 as long as they adhere to requirements promulgated by local, state, and federal agencies, and refrain from acting in a grossly negligent manner. It is retroactive to March 12, 2020 and expires on July 1, 2023. Notably, public-school entities (including preschools, K-12, charter, and private schools), as well as hospitals and other healthcare providers, were specifically precluded from liability protections.
The legislation also imposed additional mitigation requirements for public accommodation facilities in Las Vegas and several other areas of the state, directing the Director of the Department of Health and Human Services to adopt regulations requiring public accommodation facilities to limit the transmission of COVID-19. A “public accommodation facility” is defined as a hotel and casino, resort, hotel, motel, hostel, bed and breakfast facility, or other facility offering rooms or areas to the public for monetary compensation or other financial consideration on an hourly, daily, or weekly basis. The legislation also authorizes the Nevada Gaming Control Board to require casinos under its domain to submit written copies of its COVID-19 prevention protocols.
The New Mexico Environment Department filed an emergency amendment to require employers to disclose positive COVID-19 cases among their employees to the state within four hours of being notified of the test results.
The New York State Workers’ Compensation Board adopted a new rule that applies to reimbursement codes and values for COVID-19 testing when a workers’ comp claim has been filed or when testing is part of a pre-operative protocol in keeping with health department guideline.
The Board also published an emergency rule allowing telemedicine technology to be used in emergency settings. Reimbursement already had been authorized for many other medical services in the state. Because it was adopted on an emergency basis, without the public comment period, the rule will expire on Oct. 18.
The Pennsylvania Department of Health issued a new order requiring the development and implementation of policies and procedures related to the distribution of personal protective equipment, specifically N95 masks, for direct care workers in long-term care facilities. Under the new order, nursing homes, personal care centers, assisted living homes and private intermediate care facilities must develop and implement policies for obtaining and distributing personal protective equipment.
The Tennessee COVID-19 Recovery Act was enacted, providing broad protection to individuals and businesses from claims arising from COVID-19 unless there is clear and convincing evidence of gross negligence or willful misconduct. Health care professionals and facilities, businesses, non-profits, religious organizations, public institutions of higher learning, and all other individuals and legal entities are protected from liability under the Act.
A bill that would have made COVID-19 an occupational illness failed in Tennessee’s Senate Commerce and Labor Committee.
Texas became the final NCCI state to officially approve NCCI’s payroll rules relating to paid furlough due to COVID-19 and allowing for reclassification of employees who have changed jobs and are working from home.
Claims: a potpourri of approaches but higher denial rates than other claims
While claim data by state is limited, claims are being handled differently in different states.
Moreover, some businesses are encouraging sick or quarantined workers to use paid time off or have kept paying salaries to avoid claims, feeling it is better to assist virus-stricken employees than create an adversarial situation. Yet, denial rates are relatively high.
The Division of Workers’ Compensation in Florida reports a denial rate of about 46% of the 5,693 claims that had been filed as of the end of June. In Georgia, 44% of the 1,827 claims have been denied as well as almost two-thirds of claims in Colorado (1,200 of 1,923). Of the 11 fatality claims in Colorado, only one has been accepted. First responders and health care workers who contract COVID-19 at work may be eligible for workers’ compensation benefits under Florida law, but the other states mentioned do not have presumption for COVID-19 exposure.
Through July, COVID-19 claims represented 10.2% (31,612) of all California injury claims. This number is projected to grow to about 56,000 since there are time lags in filing, reporting, and recording. Claims include 140 death claims, up from 66 reported as of July 6.
Health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.7% of the claims recorded for the first seven months of this year, followed by public safety/government workers, who accounted for 15.8% of COVID-19 claims. These were followed by retail trade (7.9%), manufacturing (7.0%), and transportation (4.7%), according to the analysis.
California’s executive order of presumption was retroactive to March 19, 2020 and extended through July 5, 2020.
In Pennsylvania, there were 5,354 initial workers’ compensation claims received between March 11 and August 7 that were related to COVID-19, according to the state Department of Labor and Industry. Virginia reports over 6,300 claims as of mid-August, most of which are still pending. Ninety-four have been denied.
During a recent webinar, Health Strategy Associates’ Joe Paduda and Bickmore Actuarial’s Mark Priven, noted FAIR Health, a medical data firm, reported that the median hospital charges for COVID patients, for most age groups, were less than $40,000. The median allowed amount of reimbursement was about $20,000. Further, a recent survey of third-party administrators and insurers shows that most virus claims cost less than $3,500 for medical and indemnity. The costs are driven by just four percent of the claims.
Lawsuits on the rise
According to the employment and labor law firm Fisher Phillips LLC, 319 lawsuits relating to COVID-19 were filed in July, up from 122 in June. As of August 25, there were 532 cases. California leads all states with 100 filings, followed by New Jersey (60), Florida (54), Texas (39), New York (37), Ohio (25), and Illinois (21). Many of the cases involve workers claiming unsafe or unsanitary work conditions or retaliation. Some lawyers speculate that employees may feel it is difficult to win their comp claims and turn to lawsuits. Work comp accounts for only about 15% of the P&C claims related to the virus.
Also emerging are third party suits from family members, alleging wrongful death of a loved one or spreading of the virus to family members, because employers failed to keep employees safe.
A new NCCI report compiles some recent COVID-19 workers’ comp lawsuits. While the cases are still pending, they provide a glimpse into the type of behavior and policies that lead workers to sue during the COVID-19 pandemic. Given the common theme of employee safety, the best way for employers to protect themselves from litigation is to follow and enforce public health and OSHA guidelines, provide adequate protective equipment and training, and carefully communicate all protocols. Make the focus of communication the well-being of employees, not production. Steep jury awards are common in emotional cases and there is much emotion surrounding COVID-19, so take steps to avoid going to trial.
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