On Thursday, April 23, 2020, there will be a broadcast of a National Town Hall meeting recorded the day before. We have all, by this time, been in attendance on a video conference through the Internet. However, this particular Zoom meeting included about 80 participants. It was the largest in which I have been involved, and any meeting with that many participants is a challenge. Bob Wilson (WorkersCompensation.com) and Mark Walls (Safety National) co-moderated this expansive group.
The foundational idea seems to be akin to the print efforts regarding state reaction to COVID-19. WorkersCompensation.com has a map-driven webpage with state-specific updates on what is different and/or implicated in these challenging times. WorkCompCentral (subscription) has a page in which various COVID-related news stories are aggregated for convenience. Everyone in workers' compensation has come to the realization that keeping up with the landscape these days can be a full-time endeavor. Thus, an intriguing idea to gather both industry and regulatory together for a 90-minute discussion of what is challenging and the various reactions.
The conversation included at least Alabama, Arkansas, Arizona, Colorado, the District of Columbia, Florida, Kentucky, Maryland, Massachusetts, Mississippi, Montana, Nebraska, New Jersey, New Mexico, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, and Wisconsin. The variety of perspectives was not surprising. The economic impacts, personal and systemic, permeated the topic.
There are some jurisdictions moving to require workers' compensation insurers to refund premiums based on the fact that employers' activities are currently reduced. Other states are encouraging both investigation and consideration of premium reduction. This is not an issue only for workers' compensation. The national news has reported that auto insurers have been voluntarily reducing premiums and refunding payments. The explanation from The Motley Fool helps us understand that auto premium is calculated on risk (miles driven or hours worked) and as those decrease the risk of resulting harm similarly decreases.
There was concern expressed about the perceived potential for states to have expectations for COVID compensability. There are states that have made such disease claims compensable for some by legislative intervention, and others by executive fiat. Some perceive these efforts to be contrary to (supplemental to) the law as it existed before COVID. There were concerns expressed regarding the risks for which the insurance industry contracted, or did not, and the premiums it collected, or did not. Some express worry that those carriers are now unexpectedly subjected in some jurisdictions to risks for which no premium was collected. That, others mention, may be exacerbated by state mandates for the return of workers' compensation premiums to employers. There may be distinctions between free-market and monopolistic states in this regard.
Operationally, COVID has affected the operations of various state regulatory agencies. There are states that have closed their workers' compensation offices to the public in a prophylactic manner. Others have closed facilities in a more reactionary fashion following some specific exposure or risk. One state closed because of a particular potential exposure, engaged in "deep cleaning" and then reopened after days. Other states, like Florida, have operated the workers' compensation adjudication system in a largely consistent manner throughout; we are blessed with a long history of electronic filing, remote hearings, and technology reliance. The actions and reactions have had widely diverse impacts and implications.
What is clear from the growing body of investigation into COVID? Perhaps not a great deal. Every news outlet has its own expert, and each has opinions. Those change seemingly daily. The most reliable answer seems to be that no one, scientist or soothsayer, really knows how bad this virus will affect us, what will stop or cure it, or when it will end.
It is probable that many people have been exposed to this virus; whether and how they have brought that to the workplace may affect a business' operations going forward. Should contracting a virus one can be exposed to anywhere be a workers' compensation exposure? There are those who fear systemic integration of virus (this one specifically, or virus generally) into workers' compensation risk, while others feel legislative reaction may be far less probable as days pass. The challenges with COVID include not only the classic workers' compensation (medical care and indemnity following an injury), but discussion of employer responsibility for quarantine.
COVID has brought a unique medical challenge to society. The virus exists in some people who exhibit no symptoms and who therefore have no reason to suspect they carry it. Those people innocently walk among society, each a potential Typhoid Mary. The result has been the recommendation for quarantine for those who may have such exposure (though any of us may have been unknowingly exposed, perhaps repeatedly). This has seen a fair number of well people self-isolating. And, the resulting question: who should support people who are therefore unable to work? For the first time, there is inquiry as to why such precautionary isolation is not workers' compensation.
Sick employees are nothing new or novel. And, the perception is that many workers do not have, or do not have sufficient, paid sick leave. There are those whose sentiment is that the government should mandate paid sick leave. They see the risk of sick employees as a greater cost than the business' expenditure for sick leave. The cost-management is a potential issue though. The employer may save money by not providing sick leave, but the customers or coworkers who are thus exposed to a sick employee may pay the actual cost.
There is a seemingly persistent modern sentiment that whatever occurs in life, someone should pay for it. For some reason, few ever conclude that this "someone" should be the individual. Should we be saving our money individually against the potential for economic downturn, illness, or even disaster? Increasingly, there are calls for socialism to step forward, for costs of misfortune or misconduct to be borne by society rather than the individual. The calls for employer compensation for quarantine are perhaps similar to this more generalized trend away from personal responsibility.
Within that vein, there is a discussion of workers' compensation presumptions. Various states have created presumptions that anyone in a particular occupation who is diagnosed with COVID is entitled to workers' compensation. There was mention in the Town Hall of these decisions being "policy choices." Various perceptions were voiced regarding who should be entitled to such a presumption. There were several jurisdictions that mentioned police, firefighters, and medical technicians.
Curiously, one state provides a presumption for any police officer, but not for just any medical professional. The medical professionals there are entitled to this presumption only if they prove that they actually worked with someone who had the virus. Thus, a police officer there is entitled to the presumption merely because of her/his occupation. A medical doctor is entitled to the presumption only upon proof of interaction with an infected individual. I am not aware of any scientific foundations to support that police officers are more likely to contract any particular virus than a medical doctor. A recurrent question of equal protection of the laws permeates any discussion of occupation-based presumptions.
That does not mean such a foundation does not exist. It is possible that science can demonstrate the logic of making distinctions between occupations and even legal foundations (what law). Some argument can perhaps be made that without the protection of such a presumption that police forces might be understaffed. But, such an argument might as readily be made about grocery store stock employees, pharmacists, cooks, and a multitude of other professions upon which we all rely daily. In the face of a virus that can apparently be contracted by anyone anywhere anytime, is any occupation more worthy of a presumption than another? Does life without police or firefighters present more challenges than life without food on the grocery shelves?
If there is to be a presumption of occupational exposure, should there be one of tort exposure (what law)? If someone contracts COVID-19 should our law presume they must have contracted it from wherever they can prove they have been? Shall we all be afforded this route to recoup damages from the store, restaurant, or other facility to which we have visited? If we have COVID, we must have caught it there? Is that different from if we have COVID, we must have caught it on the job? If I visit my neighbor during this lockdown and become ill, should that be the responsibility of my neighbor or her/his homeowner's insurance? If my neighbor gives me a lift to the post office and I become ill, should that be the responsibility of her/his auto insurance?
And, thus, the return to the Town Hall conclusion that these are policy choices. Recognizing that the role of the regulator is to effectuate legislative mandates, one regulator suggested that in the time of COVID questions of imperative and effect may come from those legislative bodies or members. The role of regulators, either proactive or reactive, was discussed in this context. Whether the COVID crisis is a time for wholesale changes in workers' compensation is worthy of contemplation and discussion. Some in the Town Hall expressed belief that existing laws on occupational disease are sufficient and effective in determining COVID compensability, and that adjustment is not necessary.
In all, the gathering was interesting for those whose lives orbit the workers' compensation solar system. There are undoubtedly extensive personal and professional concerns about this virus. Anxiety and fear are palpable in various communities, professions, and situations. There are too many unknowns. Science struggles to react, industry struggles to react, workers' compensation struggles to react, and ordinary people struggle to react. Hopefully, science can bring us predictability, consensus, and relief soon.
Ultimately, the most important victim of COVID is likely to be the economy. That seems a callous perception to some, who would remind us that it is the individual, the person, that is most important and about whom we should be concerned. But, individual responsibility is increasingly minimized, and socialized responses are instead seemingly favored. Those socialized solutions travel on the income stream that is commerce. Whether the flow is from taxes or insurance premiums, commerce creates the funding from which social safety nets subsist. If there is no commerce, there is no economic exchange, no taxes, no premiums, and no stream. No commerce, no livelihood.
The COVID-19 implications are large and small. Some will touch us individually, others will touch us only tangentially. But in the end, COVID will touch every one of us. It is encouraging to see the workers' compensation world strive to both better understand and to support each other. Tune in on Thursday to hear the perspectives and questions. It is a worthy investment of your time.
