A hidden cost of the coronavirus, one that has escaped public attention so far, is workers’ compensation for sick workers.
If coronavirus is contracted in the workplace, the worker can file an occupational disease claim under the workers’ compensation law. That provides roughly the same benefits as workers’ compensation, paid out of the employer’s insurance policy.
Workers’ comp entitles the worker to disability benefits determined by a formula in the law, and to reasonable and necessary medical care with no co-pays or deductibles.
In general, common infectious diseases like flu and cold are not covered as occupational diseases. That’s because it’s hard to prove that an illness was acquired at work. But the situation is quite different for first responders, medical professionals and frontline essential workers exposed to the coronavirus.
If a New Mexico state government employee in a frontline job gets the coronavirus, it will be covered as an occupational disease. That was decided by an executive order issued by Governor Michelle Lujan Grisham in April. The order states that those workers shall be presumed to have contracted the disease at work. The order recommends that local governments follow the same guidance.
This order means the state will not raise a legal dispute about whether a coronavirus case for a state employee in a frontline job is work-related.
The governor’s authority does not apply to the private sector, where employers have commercial insurance. A private sector worker may have to prove that the disease was contracted at work.
New Mexico Mutual, our state’s largest private workers’ comp carrier, states on its website, “The advice …. is to submit the claim and we will conduct a claim investigation and make compensability determinations on a case-by-case basis.” In other words, they’ll evaluate whether it’s likely that this particular person caught the disease at work. If there’s disagreement, cases would be litigated in the worker’s compensation court.
New Mexico workers’ compensation law has one provision that may turn out to be important. The law guarantees medical benefits paid by the insurer may continue through the lifetime of the worker if medically justified. We’re hearing that some coronavirus patients suffer long-term lung damage or other symptoms after the initial sickness is over. We don’t know whether those symptoms may last a few months or forever.
Workers can give up the lifetime medical benefit in return for a settlement, but if they choose not to settle, the result is an insurance claim that might stay open for years. Either way, the claim could affect the employer’s future workers’ comp costs. It’s a powerful incentive for employers to help employees avoid the virus.
The pandemic has added urgency to the conversation about sick leave, nationally and in New Mexico.
The sick leave question is a real dilemma. Workers may have to decide whether to work sick or to stay home and lose a badly needed paycheck. Small businesses that are struggling to stay alive complain that they cannot afford the cost of another mandate. Both sides have a legitimate argument.
Forcing sick people to come to work is a bad idea, whether as a company policy or out of the worker’s financial necessity. Especially when the disease is infectious.
If one worker comes to work infected, other workers are exposed. Among the many bad effects is the additional cost of occupational disease claims that will burden the employer. As a simple business calculation, it might be cheaper to pay that first infected worker to stay home. And we cannot forget about workers who are waiting for virus test results or who have been ordered to stay home under quarantine.
Is it possible that there is a way to structure sick leave so it does not become an adversarial issue between two valuable groups of citizens, employers and workers?
Triple Spaced Again, © New Mexico News Services 2020