04/12/2020
COVID-19: WHAT FIRST RESPONDERS, VOLUNTEERS,
ESSENTIAL EMPLOYEES AND HEALTH CARE WORKERS SHOULD DO IF SYMPTOMATIC OR TEST POSITIVE.
How to Preserve Your Legal Rights!
In the event essential workers become symptomatic or tests positive for COVID-19, there are several things that they should do from a legal standpoint. Even if you feel you have recovered from a bout with COVID-19, there are many questions yet to be answered about long lasting effects or disabilities or death that may be caused by the virus.
Many health care providers, emergency responders and essential employees are likely being exposed or have been regularly exposed to Corona Virus disease over the past several weeks simply by performing their job duties. No one knows what will be the long-term effects of Corona-Virus Exposure.
At present there is no automatic presumption that grants automatic Workers’ Compensation coverage for COVID-19 exposure. Here are the steps we believe workers should take in order to protect their rights.
• If you have been exposed or are aware of a situation where exposure has occurred, file a written notice or report with your employer indicating the date and nature of the exposure. If your employer does not have a formal filing procedure for on the job injuries or illnesses, send an
e-mail, so it is documented.
• If you do not specifically know where or how you have been exposed, once you become symptomatic or test positive, a similar notice should be provided to the employer, except the member should simply indicate that they have contracted the disease in the course of or performance of their employment, due to repeated exposures in the work environment.
• When and if a workers becomes symptomatic or tests positive for COVID-19, the employer should be notified and the worker should file a claim with the Workers’ Compensation Board based on “accidental exposure,” not as an“occupational disease.”
• Unless a “presumption law” is adopted by the State Legislature and enacted into law, these claims will most likely be controverted or litigated by the employers or their insurance companies. (Senator Brooks’ pending bill: S8041A seeks to carve out a presumption for Volunteer Fire & Ambulance services).
• Each affected essential worker will need to provide medical documentation and the written support of a physician, including positive test results, indicating that the employee contracted the virus through the performance of his or her job duties. That opinion must be made within a reasonable degree of medical certainty, and supported by the testing.
Our law firm is prepared to help you navigate these uncertainties and anticipated litigation battles with the insurance companies. If you’ve used your own sick and/or vacation time, we will assist you in establishing the claim through the Workers’ Compensation system and seek to have a portion of your sick time restored. If you’ve directly incurred any medical or pharmacy costs to treat the virus, we will seek to have those medical bills reimbursed and ongoing bills appropriately covered under Workers' Compensation insurance, with no out of pocket expenses incurred by you. Be sure to keep receipts.
We believe the real litigation battles will arise in cases where the disability caused by the disease has resutled in long-lasting effects or causes a worker to miss work beyond the time of the usual quarantine period. We also believe that some workers may become affected with mental health issues such as post-traumatic stress disorder as a result of their participation in the front-line response to this crisis. Considering the extraordinary nature of this pandemic, these emotional stress claims may be viable under the Workers’ Compensation Law, but undoubtedly will be heavily litigated and contested by the insurance industry.
The maximum Workers' Compensation weekly payment in New York is the lesser of $934.11 or two-thirds of one’s average weekly wage. For Volunteer Fire, Rescue and Ambulance the Maximum is $600.00, but a bill to increase the benefits has been introduced in the State Senate (S-8086).
If an essential worker becomes permanently disabled, or passes away due to the disease, we expect there likely will be litigation over the benefits to which they or their beneficiaries may be entitled.
• If an essential worker passes away due to the COVID-19 illness, his or her dependents may be entitled to Workers’ Compensation survivors’ benefits in connection with the death. Those benefits may be up to $50,000 per year, tax-free.
• An essential worker who develops a long term disability or becomes permanently disabled due to the damaging effects of the disease may be entitled to ongoing payments to cover the loss of wages caused by the disease. Those benefits might be up to $50,000 per year, tax-free, to cover the loss of income time due to disability caused by the illness.
In each of these scenarios, we expect insurance companies and employers will argue that it cannot be proven that the virus was contracted in the workplace or in the performance of the members’ job duties. However, given the nature of the repeated exposures front-line workers are likely to suffer given the magnitude of the pandemic, we can help workers overcome such defenses.
Workers in public employment may also be members of The N.Y. State or N.Y. City Employees’ Retirement Systems. If you are a member of either of those retirement systems, you may be able to file for a disability pension in the event that you become permanently disabled from the full duties of your job title based on the permanent effects of the COVID-19 illness. However, at this time, there exists no “legal presumption” that these permanent disabilities would be considered to be the result of an “accident” as that term is defined in the New York Retirement and Social Security Law. Therefore, entitlement to any of these disability pensions would not come with enhanced disability benefits such as “three-quarter” disability pensions, unless and until the State Legislature amends current laws so as create a “legal presumption” that these permanent disabilities have been incurred “as a result of an accident” and in the performance of the duties. Filing a Workers’ Compensation claim will also satisfy the notice requirement for a Civil Service disability pension as well, and protects a City or State employee’s right to file for a disability pension in the future in the event the illness becomes disabling.
We expect that the Retirement Systems are likely to litigate whether deaths caused by COVID-19 should be covered as “accidental deaths,” and thus contest the ability of any dependents to collect any enhanced death benefits that might come with such a benefit. Connecting the illness to the job duties of the member will be crucial to these claims.
For long-term disabilities, Social Security Disability benefits may also be available to workers who must to stop working for more than twelve continuous months, or permanently, due to the symptoms of the illness. With so little known about the long term effects, it is reasonable to believe that some worker with pre-existing and underlying conditions will suffer permanent aggravations of those conditions due to contracting COVID-19. This may be especially true with regard to 9/11 responders suffering with the respiratory illnesses associated with that tragedy or older workers who have been dealing with compromised immune systems or veterans with preexisting exposure to toxins. We can assist with claims for Social Security Disability benefits based upon any resulting disabling conditions.
We understand that in circumstances such as you have been going through, there may be many questions about your future and your rights. Our team of attorneys is prepared to assist our heroic essential workers and all health care providers and first-responders with claims for various types of disability benefits at this trying time.
Consultations with our office are free. During the “distance keeping period,” we are available to conduct consultations by phone, by ZOOM conference, or on-line.
Fusco, Brandenstein & Rada, P.C. 1.800.416.5454
