Monday, March 23, 2020
OHIO BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting Covid-19
On March 21, 2020, the Ohio Bureau of Workers’ Compensation announced that it is permitting public and private employers to defer insurance premium installment payments due for March, April and May for the current policy year to Jun 1, 2020. The BWC will reconsider the issue of deferment again in June. Notably, the BWC stated that it will not lapse coverage or assess penalties for amounts not paid because of the Covid-19 pandemic.
The BWC also addressed whether contracting Covid-19 is a compensable workers’ compensation claim stating “it depends.” Generally, communicable diseases like Covid-19 are not compensable workers’ compensation claims because they are contracted in a variety of ways that are not unique to one’s employment. Certain jobs, however, expose employees to a special hazard or risk that increases the chance of contracting Covid-19 or other communicable diseases. To address exposure concerns, the BWC enacted an Exposure Policy in 2015.
The BWC Exposure Policy applies to emergency medical workers (i.e., first responders, EMTs, paramedics, etc.), firefighters and peace officers that are exposed to bodily fluids in the course of employment through mouth-to-mouth resuscitation, a splash or spatter in the eye or mouth, skin puncture or other entryway. The manner in which the BWC handles exposure claims depends on whether the exposure was accompanied by a physical injury.
It is the BWC’s policy to disallow a claim for an exposure without an accompanying physical injury. However, if the claimant is an emergency medical worker, firefighter or police officer and was exposed to bodily fluid in the course of and arising out of the employment and the medical diagnostic services and preventive treatment is consistent with medical, CDC and OSHA standards, the BWC or self-insuring employer will reimburse the cost of the testing and preventative treatment. If the employee contracts an occupational disease (OD) following an exposure, the employee may file a claim for an OD but must satisfy the elements of an OD claim described below.
In exposure claims with a physical injury, it is the BWC’s policy to accept the claim for the specific physical injury but not for the exposure. Reimbursement for the cost of diagnostic testing and preventative treatment is the same for exposure only claims. If the employee contracts an OD following an exposure, the employee may request an additional allowance for the OD.
Employees that are not subject to the BWC Exposure Policy must satisfy the elements of an OD claim in order for the contraction of Covid-19 to be compensable as a workers’ compensation claim. To satisfy this burden, the employee must demonstrate that: (1) Covid-19 was contracted in the course of employment; (2) the causes and characteristics of Covid-19’s manifestation or the conditions of the employment, result in a hazard that distinguishes the employment from employment generally and (3) the employment created a risk of contracting Covid-19 in a greater degree and in a different manner than in the public generally. Because Covid-19 is a pandemic, it is unlikely to result in compensable claims except in very limited circumstances.
We will continue to monitor the BWC’s response to the Covid-19 situation carefully and responsibly and will provide additional information as it becomes available.
*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation related matters. If you have questions about the Ohio BWC’s response to Covid-19 or any other workers’ compensation questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.