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.
The good news is, when it comes to COVID-19 in the workplace, we already have a solid foundation of legislation that balances available and affordable coverage for an employee’s lost wages and medical bills with insured liability protection for employers. This isn’t a new piece of legislation in response to the pandemic. Rather, it’s a solution we’ve had all along, well before COVID-19. It’s workers’ compensation.
RSA 281-A:2, XI of the Workers’ Compensation Statute provides employees with coverage for injuries or illness arising out of and in the course of their employment. This right to coverage includes those who contract COVID-19 as a result of a workplace exposure.
Eligible employees can receive benefits aimed at addressing their damages, including capped monetary relief for lost wages (paid at 60% of the average weekly wage), payment for reasonable medical treatment that is necessary and related to the work injury, compensation for some permanent impairments, and limited job protections aimed at assisting the employee in returning to work after a period of disability.
These job protections include the right to temporary alternative work opportunities during an employee’s recovery, reinstatement to work in the event the employee can return to the former position with reasonable accommodation (for up to 18 months), and in some cases, an ability to receive assistance with vocational rehabilitation.
What’s more, the benefits provided by workers’ compensation are the exclusive remedy available against an employer, fellow employee, or compensation carrier, for work related injuries (except for intentional torts) and, unlike in other states, in New Hampshire, neither employees nor employers can opt out.
Thus, our Workers’ Compensation Statute provides for a form of employer immunity in which the tort system, with its associated risks of workplace discord, protracted litigation, and unpredictability for both sides, was eliminated and replaced with a social insurance system. This “grand bargain” offers employers limited liability and financial risk by eliminating punitive damages and damages for pain and suffering. It also caps available wage payments and offers a system of adjudication that is faster and less expensive.
Employees benefit under this system as they are entitled to job protections that would not otherwise be available in a personal injury claim. Additionally, employees are better off because the benefits they receive, though limited, come faster and with less discord than might be the case if they had to seek recovery under the tort system.
The no fault workers’ compensation system offers employers and employees greater predictability, faster recovery and less disruption to work. Many COVID-19 infected employees will find available coverage under the workers’ compensation statutes if we can get the word out.
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An employee who has a greater risk of contracting COVID-19 at work than the general public’s risk of contraction can get workers’ compensation coverage for both lost wages and to cover their medical bills. Under the increased risk test, an employee can get this coverage even if the exact cause of the contraction is unknown. This increased risk can be shown either by the manner or frequency of exposure to the extent these conditions increase the risk of contracting COVID-19. See WORKERS’ COMPENSATION COVERAGE FOR COVID-19 AT WORK
Grocery workers who have increased exposure when others are staying home and health care workers who as part of their job are exposed to COVID-19 patients, along with many others, should be able to find coverage under this already existing insurance system. See WORKERS’ COMPENSATION COVERAGE FOR COVID-19 AT WORK.
This is amazing news for employers and employees alike because it means employers are already safe from lawsuits from employees who get COVID-19 at work and employees have a way to stay home while they are sick. Employees who have sick pay are less likely to come to work and spread the illness to others and employees with a way to pay for medical care are likely to get better and back to work faster.
Workers’ compensation offers a solution with less down time, less spread, less financial loss and insurance to cover it all.
Spread the word, not COVID!
Learn more about New Hampshire unemployment and workers' compensation laws through our Coronavirus resource center!