By Frank Ferreri, Special Guest Author, July 28, 2020

If anything in recent history has proven to be the ultimate “disruptor,”  COVID-19 certainly makes a strong case for top billing. Among the many changes the pandemic has brought are new approaches to workers’ compensation across the country, including within the federal government.

So, what’s changed? For some federal employees who contract COVID-19, the nature of their employment will cause the Office of Workers’ Compensation Programs to accept that their exposure was work-related without the usual showing of evidence.

High-risk Employees

As OWCP explained in guidance, federal workers who must have in-person and close proximity interactions with the public on a frequent basis, such as members of law enforcement, first responders, and front-line medical and public health personnel, will be considered to be in “high-risk employment” and have a more direct path to compensation.

As a result, and as the U.S. Department of Labor spelled out in FECA Bulletin No. 20-05 (DOL 03/31/20), if: 1) a COVID-19 claim is filed by a high-risk employee; 2) the employing agency supports the claim; and 3) Form CA-1, Notice of Traumatic Injury, is filed within 30 days, the employee is eligible to receive continuation of pay for up to 45 days.

Under the “old normal,” workers generally weren’t entitled to benefits for exposure to infectious agents without the occurrence of a work-related injury. COVID-19 has shifted OWCP’s focus, particularly for high-risk employees.

“The new procedures … call the adjudicator’s attention to the type of employment held by the employee, rather than burdening the employee with identifying the exact day or time they contracted the novel coronavirus,” OWCP’s guidance explained.

What’s needed for a “high risk” COVID-19 claim under the Federal Employees’ Compensation Act? OWCP requires the following evidence:

  • Exposure. If an employee meets the “high risk” criterion, OWCP will confirm the nature of employment based on the position title and confirm with the agency that the position is considered high risk. With this confirmation, the employee’s COVID-19 infection will be presumed to have come from work-related exposure.
  • Medical. The employee must provide medical evidence establishing a COVID-19 diagnosis. The factual and medical background must include the physician’s recognition that the employee is engaged in high-risk employment that included exposure to COVID-19 while in federal employment.

Other Federal Employees

Acknowledging that not all federal positions are at heightened risk of COVID-19 exposure, OWCP also spelled out what happens for claims from non-high-risk employees. In short, it’s not unlike other workers’ compensation claims.

The employee must provide a factual statement and available evidence concerning exposure. The employing agency is expected to provide OWCP with information regarding the alleged exposure and indicate whether it is supporting or controverting the claim. As with high-risk employees, if the agency supports the claim and a CA-1 is filed within 30 days, the employee is eligible for COP for up to 45 days.

In non-high-risk positions, the employee must provide evidence of the duration and length of occupational COVID-19 exposure. This evidence may include information such as a description of job duties, which agency the employee worked for, and the location of the work. OWCP advises employees to provide a “detailed statement” on:

  • The nature of employment.
  • How long they were exposed to the virus.
  • When the exposure most likely occurred,
  • How long and often they were exposed.
  • Where and how the exposure occurred.
  • From the agency, OWCP will seek information about occupational exposure including relevant agency records. This may include:
  • Comments from a knowledgeable supervisor on the accuracy of the employee’s statements.
  • Whether the agency concurs.
  • Confirmation of an actual positive COVID-19 test result.

Additionally, regarding medical evidence, a non-high-risk employee must show that the diagnosed COVID-19 was aggravated, accelerated, precipitated, or directly caused by work-related activities. This requires a qualified physician’s opinion, based on a “reasonable degree” of medical certainty, that the employee’s COVID-19 was causally related to employment conditions.

“Employment conditions” may include employment-related travel. In such a case, OWCP noted that the employee and agency would have to “describe in detail” the travel and potential exposure.

What’s Not Covered?

Outside of work-related travel, OWCP explained that COVID-19 exposure that occurs while going to or coming from work — such as might happen on public transit — is not compensable, as it does not arise out of and in the course of employment.

Similarly, an employee who’s exposed to COVID-19 while on vacation or leave has not experienced a compensable injury because the exposure must occur in the performance of duty.

info@feltg.com

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