As Minnesota first responders may know, the Minnesota legislature recently passed legislation to create a workers’ compensation statutory presumption for those individuals who contract COVID-19 while performing first responder duties (Minn. Stat. § 176.011). Hopefully, this legislation will serve to provide immediate workers’ compensation medical expense and wage loss coverage for our State’s first responders who are at greatest risk for contracting COVID-19 while engaged in critical services in our communities.
COVID-19 is PRESUMED to be work-related for Minnesota first responders.
The Minnesota Workers’ Compensation Act contains a handful of “presumptions” primarily applicable to our State’s first responders. This means that the law “presumes” that certain types of medical conditions are work-related, unless the employer/insurer can prove that the condition is caused by something else. In other words, the normal legal burden of proof for workers’ compensation coverage is switched, and an employer/insurer must disprove that an individual’s condition is work-related.
The COVID-19 Presumption Statute does not apply to all people, and all situations. According to the language of the statute, there are a few conditions that must be met in order to qualify under the presumption statute:
- The individual must be a “first responder” as defined in the statute, which includes licensed peace officers under Minn. Stat. 626.84, subdivision 1; firefighters; paramedics; nurses or health care workers; correctional officers, or security counselors employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; emergency medical technicians; a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units; and workers required to provide child care to first responders and health care workers under Executive Order 20-01 and Executive Order 20-19.
- The individual must be diagnosed with COVID-19 that can be shown with a positive laboratory test, or a diagnosis from a licensed physician, licensed physician’s assistance, or licensed advanced practice registered nurse (APRN), based on symptoms, if a test is not available.
- The presumption statute only applies to those individuals who “contract” COVID-19 after the effective date following enactment of the statute, which was April 8, 2020.
What does Minnesota Workers’ Compensation cover for COVID-19?
Minnesota Workers’ Compensation provides a variety of benefits for those who become sick and/or incapacitated by COVID-19, including, but not limited to, coverage for medical expenses and wage loss benefits. In the event that an individual passed away due to COVID-19, there may be death and/or dependency benefits for the survivors of that person.
What types of claims are NOT covered by the First Responder COVID-19 Presumption Statute?
- For Minnesota workers who contract COVID-19 due to on-the-job exposure, but who do not qualify as a “first responder” as defined in the new statute, they may still bring worker’ compensation claims, but they do not have the benefit of the presumption. In that instance, they must show, but a preponderance of the evidence, that on-the-job exposure was the cause of their COVID-19 infection. At Meuser, Yackley & Rowland, P.A., we anticipate that some insurers may voluntarily cover certain workers at locations where there are known outbreaks, or certain other occupations that place workers at increased risk for exposure.
- Unconfirmed COVID-19 infections are not covered under the presumption. Given the prioritization of testing in Minnesota, many individuals are told to quarantine if they experience symptoms or come into contact with a known case of COVID-19. Unless/until there is a diagnosis of COVID-19, either confirmed by test, or with a formal diagnosis, quarantine or isolation due to potential exposure is not covered. Many employers have policies requiring individuals to quarantine or isolate if they experience an on-the-job exposure or experience any symptoms potentially related to COVID-19. Those situations are NOT covered under the presumption statute.
Options for individuals who “contract” COVID-19 prior April 8, 2020, the effective date of the legislation. We expect this will possibly be an area involving litigation over when a person “contracted” COVID-19. By the time a person is actually able to get a test, and receives results back, hypothetically, that person may have actually “contracted” the disease weeks earlier.
- If a family member of a first responder with COVID-19 also then contracts the disease, the family member’s illness is not covered under workers’ compensation.
Rebutting the COVID-19 Presumption Statute.
Even if an individual meets the other requirements of the COVID-19 Presumption Statute, an employer/insurer has the right to try to “rebut” or disprove the person’s eligibility for benefits. Some potential situations where an employer/insurer may argue that the presumption is rebutted might include:
- In cases where a family member or members of the affected individual also test positive for COVID-19, an employer/insurer may try to argue that there is evidence that the person’s COVID-19 infection came from a family member, rather than work exposures. This is particularly true if an individual’s family member also works in a high-risk occupation.
- Individuals who are diagnosed close to the effective date of the legislation. We expect there may be litigation over the date on which an individual actually “contracted” COVID-19, versus when that person became symptomatic or tested positive.
- If an individual who otherwise meets the presumption statute has other potential known exposures, such as international travel, travel to a high-risk area, or contact with a known positive case, the employer/insurer may try to point to other possible exposures sources as the cause of the infection.
Complex situations that may arise involving COVID-19.
There is still quite a bit that is NOT known about COVID-19, and what workers’ compensation coverage is going to look like in practice. That said, we expect that some of the following issues may eventually make their way through the workers’ compensation courts:
- Cases where there is uncompensated missed time due to mandatory quarantine. Many employers now have policies requiring quarantine for first responders and other individuals who develop any symptoms that might be due to COVID-19, or for those individuals with known exposure. That mandatory missed time is NOT covered under the presumption statute, unless there is a subsequent confirmed diagnosis of COVID-19. At Meuser, Yackley & Rowland, P.A., we think there may be an argument to be made that in some instances, that missed time might be payable by workers’ compensation. As a rule; however, we have seen most employers covering this time off, and/or the individual who is required to quarantine may be eligible for other state or federal wage loss benefits.
- Cases where a susceptible individual, contracts COVID-19, and their underlying condition is made worse by the infection presents interesting legal questions. As a rule, in Minnesota, if a person has a non-work-related medical condition that is made worse by a work-related injury, that worsened pre-existing condition is also covered by workers’ compensation. For example, if an individual has underlying asthma that is made worse during and after their COVID-19 infection, medical care to deal with the worsened asthma condition would likely be covered under workers’ compensation.
- Likewise, a pre-existing condition that makes an individual more at risk for contracting COVID-19, or makes them more susceptible to worse symptoms, is not a bar to workers’ compensation coverage. At Meuser, Yackley & Rowland, P.A., while some employers/insurers may try to argue that they are not liable for coverage in cases where a person was immune compromised, we believe the majority of theses cases are compensable. For example, if a first responder is undergoing chemotherapy and is immune compromised as a result, that person would still be covered under the presumption statute regardless of his or her health status prior to developing COVID-19.
What should I do if I contract COVID-19 or I’m experiencing symptoms?
- Step 1: Call your doctor. If you believe that you have COVID-19 symptoms like fever, cough, or difficulty breathing, call your doctor and request further direction. Do not go to an emergency room.
- Step 2: Self-quarantine. Minimize your contact with others and don’t go to work.
- Step 3: Request a COVID-19 test from your medical provider. Request a test to confirm a COVID-19 diagnosis. If no test is available, ask your doctor to document in your medical records that no test was available, but that your doctor diagnosed you with COVID-19 based on your symptoms. Then, obtain a copy of the written diagnosis from your doctor.
- Step 4: If you have COVID-19, inform your employer and provide them with a doctor’s note confirming your written diagnosis. Once the employer is notified, it must file a first report of injury with its workers’ compensation insurer or claim administrator. The insurer or claim administrator must inform the employee within 14 days whether the workers’ compensation claim is accepted or denied.
Ultimately, the First Responder COVID-19 Presumption statute is a great start. There will certainly be cases that fall into a gray area, and cases that end up in litigation, but hopefully in the vast majority of cases, the employer/insurer will do the right thing and voluntarily pay medical expenses and wage loss for our State’s First Responders who contract COVID-19. If you have questions about legal issues related to contracting COVID-19 on the job, the lawyers at Meuser, Yackley & Rowland, P.A., are happy to provide free, confidential consultations to any Minnesota first responder. Call us today at 1-877-746-5680. For more information about first responders and COVID-19 including a video series featuring the legislators who worked on the bill and a Q/A session with our attorneys Ron Meuser, Lindsey Rowland & MPPOA Executive, Brian Peters go to www.meuserlaw.com/covid-19.