In Episode 85 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and workers’ compensation expert Randy Pollak discuss current workers’ compensation trends, and talk about what workers’ compensation liabilities exist when employees work remotely.
Workers’ Comp Claim Trends
Governor Gavin Newsom’s May 6 executive order that a COVID-19-related illness be presumed to have arisen in the workplace (if certain requirements are met) expired in July,* and employers are in a “middle zone,” Pollak, managing partner at Pacific Compensation Insurance Company, tells Frank.
At the moment, employers have not seen much litigation, but the story may still evolve with time, he says. [Note: The podcast was recorded on August 18, 2020.]
While the executive order was active, employers did not see much litigation, as many of the workers’ compensation claims were relatively mild, with employees experiencing cold and flu-like symptoms, Pollak explains.
More serious claims were accepted and therefore there was no need for litigation, he says.
Liabilities for Remote Work
With so many companies shifting employees to work remotely, could an employer be liable if a worker is injured at home, Frank asks?
Yes, with some requirements, Pollak replies.
Although the pandemic has led to an increase in remote work, working remotely is not a new concept and there is good case law that has set parameters on employer liability, he says.
An employer may be liable for injuries happening at home if the injury happened within the course of employment/rising out of the employment, and the employer implicitly or explicitly requires the employee to work from home, Pollak explains.
Generally, the employee has to satisfy the requirement that the injury happened in the course of employment—a very easy standard, he says.
This liability has existed for a long time, Pollak points out, but some employers who have only recently started employing remote workers may not be fully aware of it.
When a Worker Alleges Injury
If a worker reports to their employer that they have been injured, the employer should not delay and should provide the employee with a claim form, Pollak says.
It does not matter if the employer thinks the injury is covered or not, if a worker alleges they have been injured, the employer is required to provide a claim form, he stresses.
The same also is true for COVID-19-related claims. A claim form must be issued to the employee, even if the employee has not yet procured a positive COVID-19 test, he explains.
In some cases, employers must also report injuries to their insurance carriers, regardless of whether the employee fills out the claim form. Pollak suggests that employers consult with their carriers as to what exactly needs to be reported as there could be other issues at play.
Pollak advises that employers visit the California Division of Occupational Safety and Health (Cal/OSHA) website for detailed information on how to protect employees. The website moves beyond masks and social distancing tips, and goes into different kinds of safety protocols.
Employers, he says, should have a good faith mindset to protect their employees in this serious time, and should follow the law and correct procedure if someone is alleging a work injury.
“Aside from just the good will and the good aspect of taking care of your employees, it is a liability protection because once you follow the correct procedures, and doing the claim form and reporting it, then you have secured your ability to assert any defenses and avoid any kind of presumptions or anything like that that can occur with some kind of defect in your handling of that,” Pollak explains.
*On August 31 the Legislature passed and sent to the Governor urgency legislation, SB 1159 (Hill; D-San Mateo), extending the presumptions of the Governor’s executive order to January 1, 2023.
