COVID-19 Related PTSD May be Covered Under Workers’ Compensation

The toll of COVID-19 on workers is not just physical or economic. For many, there is an emotional impact that for some, rises to such a level that it requires treatment or time away from work. This is especially true for frontline workers who face increased risk of illness for themselves and their families by virtue of their work keeping others fed, safe and healthy.

In the last few months, and perhaps in those to come, some in our community have experienced long periods of isolation away from family and friends, interrupted only by arduous shifts at work, where the weight of responsibility and the despair at the numbers and size of the problem take a tremendous toll. Fortunately, workers’ compensation coverage is available for those who have taken on this burden and who have suffered with not just physical symptoms of COVID-19, but with the mental manifestations of emotional distress as a result of this work.

In the case of emergency responders, New Hampshire workers’ compensation laws allow employees to recover benefits for disabling mental injury suffered as a result of workplace events. However, there are numerous obstacles and challenges in making these claims. Many employees are not aware of their right to bring these claims, and for those that are, the concern of stigma or impact to an employee’s career can be a daunting obstacle to making a claim. Furthermore, when a claim is made, the chance of denial is high, and the process of appeal is in itself stressful and frequently invasive.

Too often the requirement of proof becomes a point of contention that requires the worker to open up their life and health records to inspection in order to meet the burden of proof required. Employees seeking coverage for PTSD, ASD, and other stress or mental health symptoms caused by work often face layers of opposition to their claim. In some instances, they must not only prove that the symptoms they are experiencing are work related, but to do so, they are often compelled to show that their stress is not caused by other life stressors.  This process of meeting the burden of proof in a stress injury claim can serve to make the symptoms of stress worse and discourage claims altogether. 

New legislation passed in July of 2019 seeks to address these obstacles for some of New Hampshire’s workers with the implementation of a series of amendments aimed at easing the burden of proving a mental injury claim for emergency responders/public safety workers.

RSA 281-A:2 XI, which is now in effect, amends the definition of “injury” or “personal injury” under the workers’ compensation statute, to include acute “stress disorder and posttraumatic stress disorder” if an employee meets the definition of an “emergency response/public safety worker.” This legislation also expands the definition of emergency response/public safety worker found at RSA 281-A:2 V-c, to now include “emergency communication’s dispatcher” a group of employees often overlooked but who are also deeply connected to this work. With this legislation comes the acknowledgment that the risk of mental stress injuries to these workers is real and must be met with proper opportunity for treatment and time to heal without stigmas or undue added stress associated with making these claims.

PROTECTIONS FOR FIRST RESPONDERS WHO CONTRACT COVID-19 IN NH

Executive Order for First Responders:

In the case of first responders, the burden of establishing causation with respect to COVID-19 has been made easier for the time being by Governor Sununu’s Emergency Order #36. This Order establishes that “Notwithstanding the provisions of RSA 281-a:2, XI and XIII, 16 and 27, in any proceeding before the New Hampshire Department of Labor or the administratively attached Compensation Appeals Board, there shall exist a prima facie presumption that the first responder’s COVID-19 exposure and infection were occupationally related.”

For purposes of the order, “First Responder” includes any individual covered by the definition of “Emergency response/public safety worker” as set forth in RSA 281-A:2V-c, which includes call, volunteer, or regular firefighters; certified law enforcement officers, county corrections officers; emergency communication dispatchers (incongruously, given the isolated nature of the work); and rescue or emergency medical personnel. The Order does not cover healthcare workers or any other employees who have been identified as essential workers during the emergency order. To be eligible for the protections of this Order, a “first responder” must have tested positive for COVID -19 and the case must have been reported to the Department of Health and Human Services.

It is important to note this is not new legislation, but an Order which is in effect only for the duration of the COVID-19 state of emergency in the New Hampshire. As such, unless there is a change, this Order and the presumption it provides is temporary and is only set to last as long as the state of emergency is in place. When this Order expires, the presumption will lapse and in order to be covered for workers’ compensation from contracting COVID-19, first responders will be required to prove more probably than not, that they contracted the illness in and during the course of their work by applying the increased risk test or perhaps under the theory of occupational disease.

Learn more about COVID-19 laws regarding unemployment and workers' compensation in New Hampshire.

Is COVID-19 An Occupational Disease under New Hampshire Worker’s Compensation Law?

As addressed in previous articles, there will be worker's compensation coverage available for many employees who contract COVID-19 at work. The most likely path to this coverage will be with the understanding that the employee became ill due to a neutral risk, but that the employee faced a greater risk of getting ill due to his or her work, as compared to the general public. This is known as the increased risk test and employees who can show this will likely find coverage available for lost wages, medical bills and job protections.

However, healthcare workers who treat patients with diagnoses of COVID-19 may have more than one route to winning coverage should they contract COVID-19. Certainly, these workers should be able to show they are at increased risk of contracting the illness as compared to members of the general public due to the work they do and to the correlating increased frequency of direct exposure to illness, even if no specific transmission of the disease can be traced to a known carrier. If the healthcare worker has had to engage in care that entails unusually contagious situations, such as exposures in the process of resuscitation or intubation or without full PPE, the fact that their risk was increased due to the qualitative nature of their work is clear.

That said, there may be an argument to be made that these workers or those in similar circumstances, may alternatively be eligible for workers’ compensation benefits under NH RSA 281-A:2 XIII: Occupational Disease.

RSA 281-A:2 XIII Occupational Disease

In accordance with RSA 281-A:2 XIII “Occupational disease” is “...an injury arising out of and in the course of the employee’s employment and due to causes and conditions characteristic of and peculiar to the particular trade, occupation or employment. It shall not include other diseases or death therefrom unless they are the direct result of an accidental injury arising out of or in the course of employment...”

In New Hampshire, there is coverage for employees who contract COVID-19 at work and there is also limitation of liability on the employer side. What’s more, there is insurance for the benefit of both the employee and employer in the event of exposure.

All this together is good for people and business alike, as it provides a safety net for COVID-19 loss, a means for paying for associated health care and a path back to work that will support the economy.

The primary question regarding workers’ compensation coverage, as related to the contraction of COVID-19, will hinge on whether the employee contracted COVID-19 in and during the course of work. In accordance with the law, and as interpreted and applied by the courts, the burden of proof to establish this necessary causal connection, and thus to establish eligibility for workers’ compensation benefits, is on the employee.

To meet this burden, the law requires that an employee prove more probably than not, “that the injury occurred within the boundaries of time and space created by the terms of employment,” and that it “occurred in the performance of an activity related to employment.” Both prongs of the burden must be met to prevail in a claim for benefits.

At first glance it seems it would be difficult, if not impossible to prove an employee contracted COVID-19 at work. After all, given the widespread incidence of COVID-19 in virtually every New Hampshire county, the risk of infection exists at work, but also in the community and even at home. However, this is not fatal to coverage under our law.

An employee may recover from an illness under workers’ compensation even if the cause of contraction is unknown and the risk of illness is not distinct to work, as long as the employee can show the illness results from a “risk greater than that to which the general public is exposed.” This is referred to as the increase risk test.

Workers' compensation coverage for COVID-19 in New Hampshire: Here’s what employers and employees in New Hampshire need to know about how they can limit both the spread of COVID-19 and economic loss for everyone:

Employer immunity legislation is a hot topic as politicians argue over whether our current laws are sufficient to provide coverage for employees who contract COVID-19 at work, while still reasonably limiting employer liability.

We all have an interest in worker safety. A sick employee is a sick mother, father, daughter, son, neighbor or friend. The illness of an employee and the economic impact of that illness is contagious to all those who are connected to that person. One sick employee passes the illness to another, who brings it home and then sends it to school, then on to the grocery store, to grandma and the new baby cousin and so on.

Likewise, a sick and unemployed person’s financial insecurity is also contagious. Without income or insurance and while simultaneously facing mounting medical bills, COVID-19 patients can’t help but spread the economic impact of their loss onto others in their circle. They can’t pay their bills or buy goods when their income stops and so landlords, shop owners, gas station workers, grocers, hairdressers and more suffer right along with the sick worker.

Over the last few months we have learned how connected we all are. We want employees to be safe and protected, and yet we need to reopen the economy. We want to have a safety net for those who do get sick at work, but we don’t want employers to go out of business providing this protection. As a community we face difficult choices and sometimes it feels like we face inevitable loss no matter what we do.

15:46:29

With the phased lifting of the stay at home order and the ensuing return to business and work, questions about employer and employee rights have begun to surface in increasing numbers. The problem is, all too often the speed, breadth, and impact of the COVID-19 outbreak has outpaced the ability to predict or even respond to the myriad legal questions raised as a result of this pandemic.

The Governor has issued emergency orders to establish protections for some workers and to offer guidance for employers as they begin to reopen. The Federal government has also responded with the CARES ACT, the First Families Corona Virus Recovery Act (FFCRA) and other pieces of legislation aimed at easing the economic impact of this health crisis.

In addition to new laws, orders and regulations, there are existing laws that can provide answers and protection as we all work together to forge a new path forward. Employees and employers can and should still look to the Family Medical Leave Act (FMLA) and sick leave policies as well as collective bargaining agreements to find guidance about leave time related to COVID-19. State and federal laws regarding disability rights and accommodations such as the ADA and New Hampshire RSA 354-A will offer clarity as to rights and responsibilities for employees who have disabilities due to COVID-19 or health complications due to the increased risk of contracting COVID-19. 

For employees who contract COVID-19 at work, there is protection in the form of payments for medical bills and lost wages under our state workers’ compensation laws and between the state and federal government. Many employees will have the right to increased benefits for unemployment.

There are many options, rights and benefits for employees and employers impacted by COVID-19, but the challenge has been in getting that information out to the public and then combing through the options to find the best combination of protections and benefits for each circumstance.

For some employees, workers’ compensation will be the best route to recovery for lost time from work due to illness, but for others, they may find an easier path and better coverage for lost wages by using accrued sick time. Employees with complications that will keep them out of work, but who can still perform their duties remotely, may be able to stay employed by requesting accommodations. These last few months have shown that many businesses can still function with remote workers and thus accommodations that would have been considered a hardship in January, may be perfectly reasonable now. If an employee is ill or vulnerable to becoming ill due to an underlying disability and remote work isn’t an option, it may be possible for the employee to access short- or long-term disability. Some employees who are let go or have to leave work due to COVID-19 will be eligible for unemployment benefits.

THE FIVE LINKS YOU NEED for information about employee rights under the Temporary Rule: Paid Leave under the Families First Coronavirus Response Act 

On April 1, 2020, the U.S. Department of Labor announced new action regarding how American workers and employers will benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA).

According to the DOL “FFCRA will help the United States combat and defeat COVID-19 by reimbursing American private employers that have fewer than 500 employees with tax credits for the cost of providing employees with paid leave taken for specified reasons related to COVID-19. The legislation will ensure that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus, while at the same time reimbursing businesses.”

The Department’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, effective April 1, 2020 and other helpful information. CHECK OUT THESE FIVE LINKS:

In addition to washing your hands and doing your part toward social distancing, one of the best ways to limit risk and decrease the chance of contracting this virus is to avoid unnecessary trips to the hospital. 

Sure, that’s a great goal, but we all know injuries and accidents will occur even in the time of coronavirus and some of these events will require people to see a medical provider.  Those injured or ill from work or an accident still need care, but many people are afraid to go to a doctor or hospital in light of the COVID-19 outbreak. Still others would go, but their appointments have been cancelled.

For too many, delayed treatment means more time out of work and with the economy crashing as fast as the rate of infection rises, no one wants to risk being out of work right now. So, what do you do?  Well, you might consider telemedicine.

Telemedicine can help prevent the spread of COVID-19.

In the current crisis, remote medicine, might just offer a ray of light to help protect patients and health care providers alike.  Telemedicine, visits are conducted using video conferencing. Patients “see” doctors via something akin to a zoom or face time and may never have to come to an office or hospital. This could lower risks for everyone, while reopening the door to doctors’ offices across the state - at least their virtual doors.

Even better, virtual care is covered by insurance - the New Hampshire legislature and Department of Insurance made sure of that. Effective the beginning of 2020, all providers with an already established, in-person patient relationship can bill for remote monitoring, telemedicine and substance use disorder services.  In August last year, legislation passed to guarantee patients covered under Medicaid are able to access a physician without in-person contact with that provider. The federal government has likewise acted to be sure Medicare patients can also take advantage of this option with their coverage intact.

FFCRA NEW GUIDANCE AND SUMMARY OF KEY PROVISIONS

The Families First Coronavirus Response Act (FFCRA) came into effect April 1, 2020. This legislation, which represents a significant change to the current law with respect to employees’ rights to sick pay and job protection as related to Covid-19 (coronavirus), was passed and implemented at record speed. Accordingly, the Department of Labor (DOL) has been working at a breakneck pace to issue the necessary regulations and guidelines for the implementation of this important new law. Not surprisingly, the DOL guidance has been amended over the last few weeks. This article is an update as to the provisions and regulations of the law.

On April 1, FFRCA became effective. On that same date, the Department of Labor issued temporary regulations for the public health emergency leave under the family and medical leave act (FMLA) and for Emergency Paid Sick Leave as detailed in the Families First Coronavirus Response Act (FFCRA). Thereafter, relying on the “good cause” exception of the Administrative Procedure Act (APA), the department of labor bypassed the notice and public comment provision, which would generally be required, and proceeded to issue the Final Rule on April 3, 2020.

The Final Rule supplements and clarifies the various publications previously issued from the Department of Labor over the past several weeks. The Department of Labor then updated its prior Q&A guidance based upon the content from the Final Rule. A link to that new guidance can be found here.

Maintaining good health is critical, especially in light of the Coronavirus Covid-19 outbreak, but it can be difficult to stay well and stay supplied with all you need when you are in isolation. New Hampshire Disability Rights Center DRCNH, offered the following information, tips and links to address some of your questions and challenges. Below is a summary of the New Hampshire DRCNH resources and available information.

If you have a physical or mental disability or someone in your family has a disability and you need help finding answers and resources, you may want to contact the DRCNH or go to their website to find out more and to ask questions. https://drcnh.org/

90-Day Supplies

NH Healthy Families, Well Sense, and Medicaid Fee-for-Service all offer a 90-day supply of "maintenance" medications when purchased through their mail order pharmacies.  “Maintenance” medications are medications taken on a daily basis to control chronic conditions such as diabetes, high blood pressure, asthma, high cholesterol, and many other chronic conditions. AmeriHealth does not currently have this option but is working on it.

The wage and hour Division of the federal DOL held a town meeting today to address the Families First Coronavirus Response Act (FFCRA), and we were able to attend remotely. While many questions remain, what is clear is that there are still more questions than answers at this point.

IMPORTANT NOTE and DISCLAIMER:
We are sharing what we learned today and what we have gathered from other coordinating sources, but we do so with the limitation and clear notice that this is not to be considered legal advice and our colleagues should not rely upon this summary in order to provide legal advice.

This is a summary of the new provisions of the Families First Coronavirus Response Act (FFCRA), which is itself, a work in progress, at least with respect to how it will be interpreted and implemented. We are limited by limited information and yet, as this is such an urgent and important issue, we are sharing what we know, or think we know so far.

For the most accurate information we recommend you refer to the bill itself (H.R. 6201) and that you keep checking for the regulations and model notice from the DOL and the Treasury site (as to the applicable guidance for tax and credit issues).

DOL TOWN HALL
The presentation today, 3/20/2020, focused on two provisions of the law: Emergency Medical Leave Exemptions Act and the Emergency Paid Sick Leave. The information provided was very general, the “connectivity” for the remote access was less than optimal, many of us had problems accessing the written materials, and in the end there were far more questions than answers.
MY TAKE:
What the presentation made clear is how little anyone knows about how this law might be implemented.

THE BASICS
• We are told the effective date is 15 days after enactment (3/18/2020),
• By my count that makes the effective date April 2nd.
• The legislation “sunsets” as of 12/31/2020.
• Regulations are pending, but not ready
• The DOL hopes to have a model notice for the required Employer posting requirement in 7 days
• The Legislation generally applies to employers with fewer than 500 employees
• Employers of health care providers and of first responders are excluded
• Employers with fewer than 50 employees may be eligible for an exemptions where compliance would jeopardize the business as a going concern
• There are limitations to right to reinstatement for employers with fewer than 25 employees
• The law provides an extension to the FMLA to eligible employees working for covered employers, that would provide up to 12 weeks of leave for emergency related circumstances including the employees own illness and the need to care for others- as defined by the law
• The legislation provides wage replacement benefits under certain circumstances and in varying amounts as detailed, protection against discrimination and against termination and discipline. There are also certain rights to reinstatement.
• employers pay the wage replacement benefits in the first instance and will be eligible for repayment from the government in ways to be articulated, but likely to include tax credits.


THE DETAILS
The government is working diligently to issue regulations, but not surprisingly, they are not yet available. Indeed, the vast majority of the time spent at this town meeting was focused on receiving questions from participants. The Department of Labor representatives did not, and in fairness, probably could not, answer any of the questions posed. This was simply an effort to offer preliminary guidance in the most general of terms. It was as much an opportunity to raise questions and concerns, which will presumably be passed on to those issuing regulations at the various agencies.

Follow this link for important information regarding services and benefits related to COVID-19

https://blog.ssa.gov/a-covid-19-update-from-our-commissioner/

Go here https://www.dol.gov/coronavirus for the Federal Department of Labor resources page for Coronavirus Resources for Employees and Employers.

Follow this link for important information regarding H.R. 6201 – Families First Coronavirus Response Act

THE NH DOL HAS ISUSED THE FOLLOWING NOTICES REGARDING LOWER LEVEL HEARINGS AND REGARDING CAB HEARINGS:

Update from the NH Department of Labor: Effective immediately, all hearings will either be conducted telephonically or continued. There will be no in-person first-level hearings (workers’ compensation or wage claims) conducted at the Department. The above policy will be revisited after four (4) weeks.

Update from the NH Workers’ Compensation Appeals Board:
Please be advised that, effective March 23, 2020, all Workers’ Compensation Appeals Board (CAB) hearings and pre-hearings will either be conducted telephonically or continued. There will be no in-person CAB hearings or prehearings conducted at the Department for the next four weeks, following which this policy will be reviewed.

The implications of Covid 19, commonly referred to as Coronavirus, are unprecedented and far reaching. Undoubtedly, we are first and foremost concerned about the potential impact of this virus on the health of our community and more particularly upon those most vulnerable, but then there are the economic and practical implications of our wide spread social distancing policy. 

Fortunately we have health care experts to guide us through the medical considerations while individuals and families will decide how best to protect themselves and others when it comes to calculations of risk and exposure. 

From the law’s perspective, there is also guidance and protections available for those at risk and for those financially effected by the Covid 19/Coronavirus pandemic. 

Dear Friends, Colleagues, and Clients,

With a careful eye on the circumstances surrounding COVID-19 and the evolving recommendations regarding “social distancing,” we at Rice Law Office are taking steps to ensure continuing service and accessibility while limiting in-person contacts.

We have been hard at work with our technology team establishing greater opportunities for connectivity, web meetings, remote document sharing and ways to connect with our clients and those we work with regularly in a way that limits in-person interaction.  The plan is to do this while simultaneously limiting disruption as much as possible. That said, we do anticipate changes to the way we normally do things and we ask for your patience and suggestions if you have them!