This past week, both the Pennsylvania House and Senate considered legislation to lower the burden of proof in COVID-19 cases for Pennsylvania's first responders.1 Although unsuccessful to date, some members are proposing legislation for broader COVID-19 application to include employees of "essential businesses”. One example of the proposed language includes:
“Applicability—The contraction of the COVID-19 virus by an essential employee shall be considered a personal injury to the employee under the act of June 2, 1915 (P.L.736, No.338), known as the Workers' Compensation Act. The fact that the essential employee contracted the COVID-19 virus shall establish a presumption that the injury arose in the course of the employee's employment within the meaning of the Workers' Compensation Act. The presumption shall not be conclusive but may be rebutted if the employer establishes that the employee contracted the COVID-19 virus prior to any job-related exposure” (Emphasis Added).
We bring this to the attention of our clients to alert you to the prevailing thought process pertaining to COVID-19 as a work-related injury and to provide the opportunity to proactively prepare for and develop affirmative defenses through augmented safety protection plans. In a separate article, we advised of the new Order issued by the Pennsylvania Department of Health, detailing safety requirements for all essential businesses that continue in operation.2 This Order, effective April 19, 2020, requires employers to modify and document their safety protocols for dealing with COVID-19. The proposed language changes to the WC Act would suggest what the Department of Health now demands: Essential Business must immediately review their established safety protocols and compare them for compliance with the Order issued by the Department of Health in full view of potential defenses to future claims.
This is not a scare tactic. Whether the language in the WC Act is amended or not, we brace for claims alleging workplace exposure to COVID-19. Essential businesses should be prepared to defend those claims by documenting their efforts to reduce the chance of exposure in the workplace. The Order issued by the Department of Health substantiates that initiative. The manner in which businesses comply with this Order and provide for better safety and protection of their employees and customers will vary depending upon the nature of their ongoing business. The requirements of the Order are a foundation for change – the base requirements. Employers should look critically at their facilities and function and determine what safety enhancements and modification, tied to legitimate business interests, offer the best protection for employees, customers, the public and their businesses.
As always, if you have questions or need assistance in the development of a plan for compliance, please do not hesitate to contact our Employment Practice Group at 1-888-488-2638 or one of our Workers’ Compensation attorneys.