First off, I’m sending out my prayers to anyone affected by the coronavirus/COVID-19 or knows someone who is. It is so important to follow CDC guidelines by staying home and washing hands and surfaces. We are all in this together, and I look forward to the time when we are able to go back to normal and hug our friends and family!
Now, I want to address some things regarding COVID-19 and how it affects Virginia Workers Compensation. Here is some insight that is crucial to be aware of, especially during this time of world crisis.
We have been getting a lot of calls from clients and the general public with questions about working conditions, doctors’ appointments, and the stimulus package so I wanted to share this information for everyone’s benefit.
What Everyone Needs to Know
- If an employee, including essential employees, gets the coronavirus, it would be considered an ordinary disease of life with the additional burden of proof- clear and convincing evidence. This is a much higher burden of proof than an injury by accident. From a practical point of view, it will be near impossible to prove that you ONLY got the virus from work and not outside of employment however this may be easier for health care providers. Many states have emergency legislation making a presumption for 1st responders and health care providers, but I doubt Virginia will adopt this practice. The best advice I can give to you if you have been exposed to COVID-19 is to take the House legislation law that requires that you get 2 weeks of paid sick leave in addition to your regular sick leave and vacation benefits and use emergency FMLA which gives you 12 weeks of paid leave. This applies to all companies that have 1 to 500 employees.
- The most common questions we are getting are what to do if you want to be tested for COVID-19 or are afraid to go into work because someone else may be showing symptoms. The Federal regulation right now is only people with symptoms are being tested. In a few weeks, it may go to the broader public. But people need to understand being tested at any given point in time will not mean that within the very next hour they have become infected. The key is to stay 6 feet away, wash hands, etc. Assume everyone has it and act accordingly.
- Regarding refusing to come to work due to fear of infection, there is a potential you may be able to do this, but Virginia is a “right to work” state, meaning that an employer can fire you at will. Under OSHA, however, an employee may refuse an assignment that involves “a risk of death or serious physical harm“ if all of the following conditions apply:
- The employee asked the employer to eliminate the danger and the employer did not,
- The employee refused to work in “good faith”,
- A reasonable person would agree that there is a real danger of death or serious injury and,
- There is not enough time due to the urgency of the hazard to get it corrected through regular enforcement channels.
If an employer is following the CDC guidelines, I believe it will be very difficult to prove they “didn’t eliminate the danger”. During these times, I believe open and honest discussions with your employer may lead to the best solution.
- The stimulus package is giving all individuals who make less than $75,000 a year a check for $1,200 per person and $500 per child. If you are on workers’ compensation, you will still receive this check. It will not be considered income, which reduces your workers’ compensation check, but will be called a “rebate”.
For my Clients
This current outbreak is affecting many injured workers since you are not necessarily able to get non-emergency medical care at the moment. If you’ve been dealing with the workers’ comp system for any length of time, you know that continued medical care is essential for the progress of your claim.
Many doctors are postponing appointments. It is very important that you call the doctor’s office and get your out of work notes updated. We do not want your out of work note expiring. If you are afraid to go to your doctor’s appointment, call the doctor’s office and ask the doctor for a recommendation on whether or not to reschedule if you are in a high-risk category. If your medical provider’s office recommends you not to see the doctor at this time, ask if the appointment can be conducted over the phone. If you are going to be missing doctor’s appointments and/or physical therapy over the fear of exposure or infection, call us so we can let the opposing counsel know as soon as possible so we can try to get their agreement so your checks won’t get cut off for refusal of medical care!
Lay-offs/Furloughs and Job Searching While on Light-Duty Restrictions – The Steps You MUST Take!
If you are under an Award Order for temporary partial disability benefits, (meaning that the insurance carrier is paying you the difference in your current pay to what you used to make), you should still get that weekly check. Let me know immediately if you are not. To get your full workers’ compensation check, we will need to file a change in condition claim for you. This is something that will dramatically affect your case; however, your team here at the Injured Workers Law Firm will litigate for you, which is, unfortunately, the only answer.
We will need to prove that “BUT FOR” your work injury (not COVID-19), you could find a job. To prove this will be hard. A possible way to prove this “BUT FOR” standard, is when interviewing for a job, you will want to lead with this type of question “Do you have any [light duty jobs/ jobs that don’t require lifting more than 30 lbs/ jobs that allow for frequent breaks/ etc.” – – whatever restrictions you may have. Then you can not only testify that your work restrictions thwarted your job searching efforts but then you can even cite names of specific employers’ responses as to why you were not given light duty employment.
In the meantime, file for unemployment and we will file a change in condition application for you to get a workers’ compensation check; you MUST job search and file for unemployment. Also, please be aware that everything you write on your unemployment application can be used against you in your workers’ comp claim, so be mindful of this.
We will get through this folks. My team is operating remotely for the safety of our clients and staff, but please know that we are fully functional and we are here to serve you. Call us at (804) 755-7755 or contact us online today.
About the Author: Michele Lewane
The Injured Workers Law Firm is a Richmond, Virginia based firm solely focused on serving clients with workers' compensation claims in Virginia. If you have questions about your benefits or if you would like more information on the Virginia workers’ compensation system, order our book, “The Ultimate Guide to Workers’ Compensation in Virginia” , or call our office today (804) 755-7755.