Answers for self-insured businesses about workers’ compensation coverage during the COVID-19 pandemic.
On May 11, 2021, Gov. Jay Inslee signed Engrossed Substitute Senate Bill (ESSB) 5115, also known as the Health Emergency Labor Standards Act (HELSA), and ESSB 5190 into law, making them effective immediately.
The new laws impact health care and frontline workers who contract contagious or infectious diseases that are connected with a public health emergency. Under the laws, if these workers file workers' compensation claims after becoming sick it will be presumed that they contracted the disease on the job.
Self-Insurance and Coronavirus (COVID-19) Common Questions
- Whether the worker is employed in an industry where the worker is at high risk for exposure to COVID-19.
- Whether the employer required their staff to be vaccinated.
- Was there an increased risk or greater likelihood of exposure or contracting the disease due to the worker’s job duties?
- If not for their job, would the worker have been exposed or contracted the condition?
- Can the worker identify a specific source or event during their employment that resulted in exposure to COVID-19?
- The first missed work day due to symptoms;
- The day the worker was quarantined by a medical provider or public health official, or;
- The day the worker received a positive test result confirming contraction of the infectious or contagious disease.
- Cancer (current or history of)
- Chronic kidney disease
- COPD (chronic obstructive pulmonary disease)
- Heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies
- Immunocompromised state (weakened immune system) from solid organ transplant, from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines
- Neurologic conditions, such as dementia
- Sickle cell disease
- Asthma (moderate-to-severe)
- Type 1 or Type 2 diabetes
- Cerebrovascular disease (affects blood vessels and blood supply to the brain
- Hypertension or high blood pressure
- Liver disease
- Pulmonary fibrosis (having damaged or scarred lung tissues)
- Thalassemia (a type of blood disorder)
No. There is no waiting period. All days except for the date the disease was contracted may be payable for claims that meet the presumption under the new laws (ESSB 5190 and ESSB 5115). This includes the “first three days”. This is unique to claims filed as a result of public health emergencies involving infectious or contagious diseases.
Yes. Both bills have presumptive coverage which may be challenged if the employer can show that the worker did not contract the disease through their job. For health care workers, the standard of evidence to challenge presumptive coverage must be ”clear and convincing.” For frontline workers, “preponderance” of evidence is the standard.
As with any claim, L&I considers the facts specific to each case when deciding whether a claim should be allowed. In cases involving COVID-19, these include:
It may be appropriate to postpone an IME, especially if the worker or a member of their household is at high-risk under the criteria provided by the CDC for serious illness from the virus, or when travel to the examination cannot be done safely. We should do our best to make accommodations. These situations aren’t considered non-cooperation, nor appropriate for assessing no-show fees.
The Governor has advised Washingtonians and those visiting Washington to comply with the CDC COVID travel advisory guidance. The CDC recommends travel be delayed until an individual is fully vaccinated. For those not fully vaccinated, the CDC guidance recommends getting tested prior to travel, wearing a mask and staying socially distanced from others. The department (State Fund) and the self-insurance community should continue to accommodate workers who are hesitant to travel because of COVID.
Up-to-date CDC travel recommendations can be found here: https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-during-covid19.html.
Alternatives include conducting IMEs via telemedicine when appropriate, or a consultation with a provider in the worker’s area. Please refer to the Temporary Telehealth IME Policy when considering if telehealth is appropriate.
Example: The worker is 66 years old, has a chronic medical condition that is considered by the CDC as having a high risk of serious illness from COVID-19 and is unvaccinated. The worker calls requesting that the IME be postponed and explains their situation. This is reasonable and the IME should be postponed.
Example: The worker is vaccinated and does not have any chronic medical conditions but would need to travel to the IME via a taxi and then an airline flight that would make it difficult for social distancing even with proper precautions being taken. The worker calls and expresses their concerns about this and requests that the IME be postponed. If safer alternate travel arrangements or a closer location for the examination cannot be arranged, the exam should be postponed.
Yes, it is possible. The following questions will be used to help determine if a claim will be allowed for a worker who is not in a job or at facility where exposure would be routinely expected:
When exposure to or contraction of the disease is incidental to the workplace or common to all employment, the claim will likely be denied.
Yes. If a PIR is received, a SIF-2 form should be filed. The self-insured employer should request for the claim to be allowed if it meets the presumption or the criteria detailed above.
No. If a self-insured employer receives a PIR, a SIF-2 form should be filed. If the worker is a health care worker, claim allowance should be requested. For other workers the employer may request an interlocutory order -- a non-final order that is issued while the case is still pending -- until results from the testing are received.
If the worker is health care worker, then the claim should be allowed. For other workers, if the employer paid the employee their regular salary during the quarantine period and the worker receives negative test results, no further action is needed.
Yes, if the employee is a health care worker or if the employee meets the criteria. If the employer does not pay the employee their regular salary, the employer must pay time-loss benefits to the employee for the quarantine period, up to 14 days. And, the employer is required to provide a SIF-2 form and assistance with filing a claim.
COVID-19 claims are considered occupational disease exposures. The date of manifestation is whichever occurs first of the following:
According to the Centers for Disease Control and Prevention (CDC), people in the categories described below are at increased risk of serious illness from COVID-19. . For this reason, if the worker expresses concerns about the risk to themselves or someone in their household, claim adjudicators should weigh this factor against the risks of travelling to and/or attending the medical or vocational appointment. The CDC defines serious illness as hospitalization, intensive care, ventilator needed to assist in breathing, and in some cases, being in a state that leads to death.
The following are at increased risk of serious illness from COVID-19:
OLDER ADULTS – The older a person is, the higher the risk of severe illness when the virus is contracted. Adults over 65 have by far the highest risk.
PEOPLE WITH CERTAIN MEDICAL CONDITIONS - The CDC lists the following medical conditions as having the potential to put a person at increased risk of severe illness should they contract COVID-19:
These factors, as well as a worker’s vaccination status, should be considered when making an adjudicative decision as to whether a worker should attend a medical or vocational appointment if the worker expresses a concern about the risk associated with the appointment.
More information is available on the CDC website: https://www.cdc.gov/coronavirus/2019-nCoV/index.html
Here are some public health resources for health care workers and first responders on work restrictions and return to work:
Centers for Disease Control (CDC): Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease 2019 (COVID-19).
Department of Health (DOH): Return to Work Guidance for healthcare workers (HCWs) and first responders (FRs) who have Confirmed COVID-19 Infection or are asymptomatic with High or Medium Risk Exposures* to a known case of COVID-19 (PDF).
Call L&I's main phone number for self-insurance: 360-902-6901.
L&I encourages self-insured employers to use Secure File Transfer (SFT), instead of sending paper files. To set up this service, contact us.