8/20/20 COVID-19 Brief: COVID-19, Comp and Liability: The Best Defense is a Good Offense

While the battle against the pandemic rages on, we have moved beyond the crisis phase of the war. We are now equipped with the insights we need to protect people from infection, prevent outbreaks and better care for those who become seriously ill. That policy-makers, business leaders and individuals fail to act on these insights is another, and in many ways, more challenging matter.

A Message on COVID-19 from WorkSTEPS Chief Medical Officer, Dr. Ben Hoffman

COVID-19, Comp and Liability: The Best Defense is a Good Offense

While the battle against the pandemic rages on, we have moved beyond the crisis phase of the war. We are now equipped with the insights we need to protect people from infection, prevent outbreaks and better care for those who become seriously ill. That policy-makers, business leaders and individuals fail to act on these insights is another, and in many ways, more challenging matter.

In this post-crisis mode, a lot more attention is being paid to the question: “Who’s going to pay?” Who will pay the medical bills and lost wages of a grocery clerk, nurse, or police officer? Who’s going to help the spouse widowed by COVID-19?

When it comes to businesses, two “Who will pay?” issues emerge – Workers’ Compensation and Liability:

  • Changes in Workers’ Compensation Presumption: As of this writing, about 15 states have taken action to amend state workers’ compensation policy so that COVID-19 infections in certain workers are presumed to be work-related and thus covered under workers’ compensation. In some states, the change in presumption applies only to first responders and health care workers; in other states, it applies more broadly to “essential workers.”
  • The implication for organizations that employ workers covered under such policy changes is that they now hold the burden of proving an employee with COVID-19 was NOT infected at work. This article provides a good overview of the situation and a table that identifies which states are doing what relative to workers’ comp presumption for COVID-19.
  • Liability: Can the spouse of an employee who died of COVID-19 sue his wife’s employer? Can an employee sue because they were infected at work and now have been diagnosed with cardiac myopathy suspected to be a result of the disease? Maybe, and plaintiff’s attorneys are hard at work building these kinds of cases right now.
  • Tennessee and about a dozen other states have passed laws to protect businesses from these types of suits, and similar legislation is being contemplated in Congress. However, according to this article, such laws will not provide a safe harbor for employers that have failed to implement recommended measures to protect their employees.  

A Good Offense

How do companies avoid having to pay these costs?

1. Stay Informed: Understand laws in your state that may change workers’ compensation presumption for COVID-19 or protect your organization from liability for COVID-19 illness and death.

2. Remain Vigilant with Prevention: By now, your company should have a comprehensive strategy, complete with ventilation system adjustments in place to protect employees from COVID-19. Policies should be regularly updated to reflect the latest evidence and CDC Guidance, monitored for compliance, and enforced with meaningful consequences.

A robust prevention strategy is your best offense for defeating COVID-19 and your best defense against workers’ compensation and liability claims.  

3. Professionally Manage COVID-19 Cases and RTW: Beyond the value of expert clinical judgment in managing cases, case tracking and making return-to-work decisions, professional management support by WorkSTEPS or another trusted partner assures that important case-related data is captured, stored and available in the event that your organization needs to defend against a claim.

4. Change Your Mindset: Being prepared to defend against a claim is a different mindset than managing a crisis. Here’s an example:

A plant manager notices that a group of employees has established their own informal break area. Unlike the formal break room that is well-ventilated, set-up for social distancing and where mask-wearing is enforced, the informal break space has none of these attributes. In addition to enforcement actions to get rid of the informal break area, data needs to be recorded noting who, where, when and how, perhaps accompanied by a picture of the area. If a participating worker becomes sick, information about this violation of established infection controls may be essential to your defense.

From the beginning, we have emphasized in this newsletter the need to adapt to new information and changing circumstances. Recent articles have focused on helping you use new information about testing, the importance of ventilation, and return-to-work guidance to make your COVID-19 response more effective and efficient. Changes in workers’ compensation rules and the liability landscape focus our attention on down-stream financial impacts, but interestingly serve to highlight the importance of diligent prevention practices and record-keeping.  

As always, we hope the insights and resources in this Brief are useful to you. Don’t hesitate to let us know if there is a topic you’re struggling with that we’ve not addressed by submitting your thoughts and ideas here.

Ben Hoffman, MD, MPH
Chief Medical Officer, WorkSTEPS

For more from Dr. Hoffman, connect with him on LinkedIn.

Learn more about how WorkSTEPS can partner with your organization to support your response to the threat of COVID-19 in your workplace with our COVID-19 Employer Services.


Area Reported Cases Deaths Recovered
Global 22,432,046 786,857 15,144,639
United States 5,667,040 175,491 3,013,641


Nationally: On Monday, the U.S recorded its lowest cases in nearly 2 months, with 35,112 new cases and 445 deaths, according to data from the Johns Hopkins tracker. The decrease in cases is a sign that summer hot spots, including Arizona, Texas, and Florida, are experiencing falling case counts. However, reports from schools that have opened nationwide, as well as nursing home data, show congregate living remains a major contributor to COVID-19 outbreaks.

Operation Warp Speed on Track for End-of-Year Vaccine Delivery: Operation Warp Speed is a public-private partnership whose goal is to deliver 300 hundred million doses of safe and effective COVID-19 vaccines by the end of the year. OWS is well on its way to delivering multiple vaccines to the American people, according to officials involved. Government agencies and private drug firms began working on medical countermeasures when the coronavirus first became known late last year. As a result, multiple vaccine and therapeutic candidates are conducting the later phases of clinical trials needed to demonstrate their safety and efficacy, officials said.

Infectious Coronavirus Retrieved From Hospital Air: A new study published evidence that floating respiratory droplets called aerosols contain live virus, and not just fragments of genetic material. Researchers succeeded in isolating live virus from aerosols collected seven to 16 feet away from patients hospitalized with COVID-19. This is farther than the six feet recommended in social distancing guidelines. Many experts believe airborne virus plays a significant role in community transmission.

FDA issued EUA authorization to saliva test: Over the weekend, the FDA issued an EUA to Yale School of Public Health’s SalivaDirect COVID-19 diagnostic test. Yale intends to provide the SalivaDirect protocol to interested laboratories as an “open source” protocol. Designated laboratories could follow the EUA instructions to obtain the required components and perform the test in their lab. The  test does not rely on any proprietary equipment from Yale. Testing saliva eliminates the need for nasopharyngeal swabs, which have also been prone to shortages, and alleviates patient discomfort associated with these swabs. Saliva testing does not need a separate nucleic acid extraction step, unlike the PCR  tests. This test could be groundbreaking in increasing access to testing. This is the fifth test that the FDA has authorized that uses saliva as a testing sample.

FDA’s Emergency Approval of Blood Plasma Is Now on Hold: Last week, just as the FDA was preparing to issue an emergency authorization for blood plasma as a COVID-19 treatment, a group of top federal health officials including Dr. Francis S. Collins and Dr. Anthony S. Fauci intervened, arguing that emerging data on the treatment was too weak, according to two senior administration officials.

Encouraging news: Researchers who have been monitoring immune responses to the coronavirus for months are now starting to see encouraging signs of strong, lasting immunity, even in people who developed only mild symptoms of COVID-19, a number of new studies reported. Researchers published that antibodies, as well B cells (immune cells) and T cells capable of recognizing the virus, likely persist months after infections have resolved. While speed with which studies are being published is unprecedented, these findings could help allay anxiety over whether people already infected are vulnerable to repeat infections of COVID-19.

Mitigation / Suppression:

Preparation for flu season: In preparation for flu season combined with the  global pandemic, CDC director Redfield urged people to get vaccinated against the flu, as this could potentially be freeing up a hospital bed for someone infected with COVID-19. Only about 50% of Americans receive their seasonal influenza vaccination in a typical year, but Dr. Redfield hopes to increase that proportion to 65% this year. The CDC usually purchases 500,000 doses of seasonal influenza vaccine to provide for uninsured individuals, but this year, it is acquiring an additional 10 million doses. Despite this investment, some experts are concerned these efforts will not be sufficient.

2020 Flu Campaign: This year’s flu vaccine campaign is expected to be the largest and most critical in recent history. State public health officials are trying to increase uptake; in Denver officials are aiming for 65% from 45% in previous years. Mobile vans, vaccine strike teams and drive-throughs will take the place of traditional tactics to get shots to the public. This new model will also be a valuable dry run for when for the logistics associated with a coronavirus vaccine campaign.

Quest Diagnostics: One of the biggest processors of COVID-19 tests in the country - Quest Diagnostics announced it now has ample capacity to accommodate incoming orders and cut down its COVID-19 testing turnaround time from 7 days to 1 to 2 days for all tests. The lab stated that a month ago the surge in US cases had made fast turnaround times impossible. Long turnaround times have been clinically inadequate in returning test results in time for infected people to isolate.  

Oleandrin: Oleandrin, a chemical component of the Oleander plant has been researched for its potential applications in cancer treatment and as an antiviral agent. Some of the studies in these areas have shown successful results in laboratory research, but it has not been tested in humans with COVID-19. A pre-print article reported how in a test tube, Oleandrin reduces production of the virus responsible for COVID-19. But did not take into account the recognized cardiac toxicity of the chemical when consumed by animals or people. American Botanical Council (ABC) warned the public about the substantial toxicity associated with all parts of the oleander (Nerium oleander) plant.


CDC clarified reinfection: Late last week, the CDC sent out a clarification stating that the updated isolation guidance for COVID-19 patients is not meant to imply that a person is immune to reinfection in the 3 months following COVID-19 infection. Rather, the CDC said, the guidance simply suggests that retesting someone in the 3 months following infection is not necessary, unless they are showing symptoms.

Disparities among workers in workplace outbreaks: A study published on Monday highlighted overrepresentation of US minorities in frontline occupations where exposure to COVOD-19 might be higher has resulted in a disproportionate risk of infection. The study examined workplace outbreaks in Utah (UDOH) and reported that  58% were in three sectors: manufacturing, wholesale trade, and construction. UDOH reported 11,448 confirmed COVID-19 cases throughout the state, including (12%) associated with workplace outbreaks. The incidence among workplace outbreak-associated cases was highest in the wholesale trade and manufacturing sectors. Despite representing 24% of Utah workers in all affected sectors, Hispanic and nonwhite workers accounted for 73% of workplace outbreak-associated COVID-19 cases. This disparity was observed across all 15 industry sectors.

The Work From Home WorkSTEPS Medical Team:

Ben Hoffman, MD, MPH
Chief Medical Officer

Tony Nigliazzo, MD
Medical Director

Loraine Kanyare, MSN, MPH, RN
Director of Case Management

Robert L. Levitin, MD
Physician Consultant

Lynda Phillips, LVN
Nurse Case Manager

Codey Church, LVN
Nurse Case Manager

Kerry Womack, LVN
Nurse Case Manager

Chuck Reynolds
Strategic Communications Consultant

This Guidance (“Guidance”) is provided for informational and educational purposes only. It is not intended as Legal Advice or Medical Advice. Adherence to any recommendations included in this Guidance will not ensure successful diagnosis or treatment in every situation. Furthermore, the recommendations contained in this Guidance should not be interpreted as setting a standard of care or be deemed inclusive of all proper methods of care nor exclusive of other methods of care reasonably directed to obtaining the same results. The ultimate judgment regarding the propriety of any specific therapy must be made by the physician and the patient in light of all the circumstances presented by the individual patient, and the known variability and biological behavior of the medical condition. Similarly, this Guidance is based on current advice, comments, and guidance from the EEOC, CDC and the CMS made publicly available. The ultimate judgement regarding the propriety of any specific employment action must be made by the company and attorney in light of all of the circumstances presented by the company, state and federal rules existing at the time and the then current state of the National Pandemic. This Guidance and its conclusions and recommendations reflect the best available information at the time the Guidance was prepared. The results of future studies or changes in rules, regulations or laws may require revisions to the recommendations in this Guidance to reflect new data. WorkSTEPS does not warrant the accuracy or completeness of the Guidance and assumes no responsibility for any injury or damage to persons or property arising out of or related to any use of this Guidance or for any errors or omissions.

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