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HPS Legal Alert: The Inevitable Workplace: COVID-19 and Workers’ Comp

by Michael M. Riedhammer, Esq

COVID VirusTHE NEWS IS OUT: employees across Florida are being called back to the physical locations of their employment.  As this happens, the cautious and vigilant employer will have put safeguards in place with the intent of preventing any transmission of disease.  But it seems inevitable that some employees are going to be diagnosed with COVID-19 in the coming weeks and months.  It thus seems likely that there will even be instances of multiple diagnoses from the same employment location.  There will be questions and concerns from both employee and employer alike when that happens. 

The employee who tests positive for COVID-19 after returning to a physical work location will no doubt feel that the two are related.  That employee, with perhaps no other options, may look to workers’ compensation to cover medical expenses and lost wages.  However, it is an uphill battle indeed, a “Herculean task” as recently described by the 1st DCA, to prove that an exposure or occupational disease arose out of work. It would seem that the employer and the insurance company will be quick to deny these claims given the unlikely chance of the injured employee prevailing.

The cautious and vigilant employer however must be ever more cautious and vigilant in issuing such a denial.  If not worded correctly, the denial may be just what the injured employee needs to circumvent workers’ compensation immunity and open the door to seek damages in circuit court.  The employer who did not follow all the CDC guidelines or, perhaps worse, who may have put them in place but did not see to their strict adherence, may find itself subject to more significant costs than a few doctors’ visits and some lost wages. 

As the workplace enters the “new normal” these scenarios will likely be playing out in all types of employment situations.  Every instance will be different and unique and will need to be addressed on an individual basis. 

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