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Requirements for employers and what employers should do now 

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By Samantha Stecker Otero

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On July 15, 2020, Virginia became the first state in the country to adopt an Emergency Standard for COVID-Related Workplace Safety, which applies to all employers in the Commonwealth.  In essence, the regulations require employers to analyze their worksites and the tasks that each employee performs, in order to effectively categorize the COVID-related risks inherent in those workplaces and/or tasks.

Once the categorization of risk is made, employers will then be required to abide by various requirements for each level of risk. The Emergency Standard is in effect, however the requirements regarding training and implementation of infectious disease plans (for employers in the “very high”, “high” and “medium” risk categories) will not become effective for 30-60 days. Additional guidance will be forthcoming from DOLI.

Virginia employers will need to comply with the Emergency Standard or potentially face

WORKERS COMPENSATION CASE WATCH

In Loudoun County v. Richardson, the claimant injured his hip in a work accident.  The claimant’s treating physician performed a hip replacement surgery and then gave the claimant an 11% rating for loss of use.  Later, the treating physician was asked to calculate the claimant’s level of impairment before the hip replacement surgery, which the doctor determined was 74%.

SPECIAL EDITION | Coronavirus & Comp Updates

• • • The effects of the coronavirus pandemic have caused many changes in how we work in Virginia.  Office workers and teachers are some of the many types of employees who have transitioned to working remotely because of Governor Northam’s Executive Orders closing schools and encouraging telework. With a large part of the workforce working remotely and/or from home, there are several issues for employers and carriers to consider.  

Workers’ Compensation Concerns

Arising Out Of

Added risks in the employee’s home workspace are likely to be “conditions of the work place” meeting the arising out of element of a workers’ compensation claim. 

Three Case Examples:

SPECIAL EDITION | Coronavirus & Comp Updates

• • • Compensability and Burden of Proof

A nursing home employee or in-home health care professionals can prove a compensable coronavirus claim, by showing that their coronavirus diagnosis:

1. arose out of and in the course of the employment;

2. did not come from causes outside of work; and, 

3. that coronavirus is an infectious or contagious disease contracted in the course of employment in a nursing home or in the direct delivery of healthcare.

The second and third elements will likely be the most difficult to prove.  

Nursing Homes are at the Highest Risk of Being Affected

However, as COVID-19 spreads in the United States, confirmed cases in nursing homes and long-term care facilities have continued to rise. The Centers for Disease Control and Prevention (“CDC”) has indicated that nursing homes are at the highest risk of being

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

At this point, the full impact of the coronavirus is unknown.  The American College of Cardiology’s website states that “the specific effects of COVID-19 on the cardiovascular system remain unclear, although there have been reports of acute cardiac injury, hypotension, tachycardia, and a high proportion of concomitant cardiovascular disease in infected individuals…we’re all

McCandlish Holton wishes to assure our clients and the community that we are working to maintain full operations during the current health crisis. We are carefully following the regional and national updates on the spread and impact of COVID-19 (Coronavirus) to protect our employees, clients, and community.

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

Va. Code §65.2-402 provides first responders with a presumption that respiratory and heart diseases, as well as certain other medical conditions, are compensable.  If the Commission analyzes a coronavirus claim under this code, could it find in the claimant’s favor?

Va. Code §65.2-402 provides first responders with a presumption that respiratory and heart diseases, as well as certain other medical conditions, are compensable.  To defeat the claim, the defendants must show that the claimant’s disease was not caused by the employment and that a non-work-related cause of the disease existed.  If the Commission analyzes a coronavirus claim under Va. Code §65.2-402, it may well find in the claimant’s favor, depending upon how the coronavirus is ultimately found to effect other health conditions.   

A Claim Involving Virally Induced Heart Disease in a Police Officer

The claimant in Town of Purcellville Police v. Bromser-Kloeden, 35 Va. App. 252 (2001) was a police officer seeking workers’ compensation benefits for virally induced heart disease.  The defendants argued that the claimant’s condition did not qualify as an occupational disease

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

The Court of Appeals of Virginia considered whether a claimant’s tuberculosis was a compensable ordinary disease of life. Will the Court’s analysis be instructive in evaluating coronavirus claims that will inevitably be filed in the coming months?

In Lindenfeld v. City of Richmond Sheriff’s Office, 25 Va. App 775 (1997), the Court of Appeals of Virginia considered whether a claimant’s tuberculosis was a compensable ordinary disease of life and the Court’s analysis may be instructive in evaluating the coronavirus claims that will inevitably be filed in the coming months.  Tuberculosis spreads from person to person through microscopic droplets released into the air when a person with active tuberculosis coughs, speaks, sneezes, spits, laughs, or sings.[1]  Much like tuberculosis, the World Health Organization has suggested that coronavirus can spread from person to person through small droplets from the nose or mouth when an infected person coughs or exhales.[2] 

The claimant in Lindenfeld, was a deputy sheriff in a jail containing inmates with active and

SPECIAL EDITION | Coronavirus & Comp Updates

Read the full 4-part Workers’ Comp and COVID-19 Update.

Under the Virginia Workers’ Compensation Act, COVID-19 (“coronavirus”) will likely be treated as a “disease.”  In Virginia, a disease may be compensable under the Act if it is an occupational disease or an ordinary disease of life. 

Necessity of a Diagnosis

Regardless of whether coronavirus is pursued as either an occupational disease or an ordinary disease of life, the claimant must first prove that they are actually suffering from a “disease” and will likely need to establish this with a confirmed diagnosis of coronavirus to successfully meet their burden of proof.  Mere exposure or symptoms consistent with coronavirus, absent a diagnosis, will not likely be enough.  However, this does not

WORKERS COMPENSATION CASE WATCH

In Mizelle v. Holiday Ice, Inc., claimant got into the employer’s truck to make a delivery and started driving without putting his seat belt on.  He knew the law required him to wear a seat belt but admitted that he did not put it on and intended to put it on later during the trip.  Within five minutes of starting the trip he lost control of the truck and was injured when he was ejected from it during the crash.