By: J.P. Harris
May 26, 2020
The Governor’s Economic Re-Opening Task Force asked the Attorney General to examine an employer’s liability to an employee who contracts COVID-19 on the job. The Attorney General reached two key conclusions.
First, the existing workers’ compensation system, RSA 281-A, precludes employees from suing their employers for personal injuries sustained while working. This means that employees who contract COVID-19 on the job cannot sue their employers in court. Rather than file a lawsuit in a court, employees who are infected may seek compensation through the system for lost wages and medical benefits. Spouses of deceased employees can seek death benefits through this process as well. This is largely good news for employers, who will not have to incur defense costs and endure long, drawn-out litigation in courts.
In practical terms, if an employee contracts the virus as a result of employment, the employer will submit a form, the Employer’s First Report of Injury Form, to the Department of Labor. All employers are required by law to maintain workers’ compensation insurance for all of its employees, and that insurance carrier will be notified of the injury and provide some level of representation for the employer throughout the administrative process that follows to determine whether the employee is entitled to benefits, for how long, and in what amount. Quasi-judicial administrative hearings will be conducted at the Department of Labor in short order (much faster than they would through the court system) affording employers and employees a speedier and less-costly conclusion.
The Attorney General reached a second conclusion that is important for employers when he confirmed that employees will have to prove their contracting the virus arose out of and in the course of the employee’s employment. Employees will have to prove they were infected while on the job and while performing an employment activity. This means that employees will have to demonstrate that the employment caused the infection, that they were infected while working and not from some other source. This causation requirement may prove difficult because COVID-19 has a long incubation period and is easily transmitted from a carrier. As a result, an employee might have been infected with the virus days before any symptoms emerge, making it hard to pinpoint that the source of the infection is the workplace and not any of the dozens of other possible sources an employee encountered in the preceding days or weeks.
In order to receive workers’ compensation benefits, an employee will have to demonstrate that the employment subjected the employee to a risk for contracting the virus that is greater than that to which the general public is exposed. In applying this test to COVID-19, the Attorney General opined that if an employer can demonstrate that it undertook reasonable efforts to comply with CDC, State or industry operational guidelines to attempt to protect employees, then the employment would not create a risk to the employee that is beyond what the employee would experience in the ordinary course of life. Therefore, if an employer follows published guidelines, the Department of Labor should not find the employer liable to the employee for workers’ compensation benefits.
The Attorney General’s opinion is a positive development for employers, who will not have to face lawsuits from employees and who will benefit from the standard employees will need to carry at the Department of Labor to receive benefits. There are a couple of items the Attorney General did not address, however.
First, employers pay differing amounts for their workers’ compensation insurance premiums depending on the level of risk associated with the jobs performed by the workforce. Premiums are adjusted year-over-year according to the employer’s experience rating and modifier, which is essentially a prediction that past loss experience predicts future losses. If an employer faces several COVID-19 claims in 2020, the insurer is likely going to attempt to recoup costs at the next renewal. It is unknown at this time how insurers will use COVID-19 claims in 2020 to predict future claims. Will 2020 be seen as a one-time experience? Will carriers assume even more infections in 2021? These decisions have financial consequences for employers who will be required to maintain workers compensation insurance for its workforce into the future.
Another topic not addressed by the Attorney General is claims brought by family members of infected employees who bring the virus home from work and infect the household. The spouse of an employee is not barred by the workers’ compensation statute from bringing his/her own lawsuit for injuries suffered by the spouse (as opposed to injuries suffered by the employer). Assume an employee works in an office and contracts the virus in the workplace because the employer failed to follow recommending guidance. The employee brings the virus home and infects his/her spouse. The employee cannot sue his/her employer in court, but pursues benefits through the workers’ compensation system. The spouse, however, cannot receive workers’ comp benefits for the spouse’ own injuries, so he/she can sue the employer in court. Employers, therefore, are not completely insulated from lawsuits and they must anticipate the risk of these secondary infection lawsuits.
All in all, the Attorney General’s opinion is a positive development for employers as the economy re-opens. Of course, each individual claim will need to be examined on its own, as infections are inherently individual. Employers must remain vigilant in implementing policies and procedures based on published guidelines to try to keep their employees from contracting the virus.