Over the last few weeks I have answered multiple calls from agencies unsure how to best approach worker’s compensation coverage for firefighters, medics, EMT’s, and police during the Coronavirus crisis. Given the proliferation of the virus and its ability to spread quickly through minimal contact, employers and employees alike wondered how proof of a workplace exposure could ever be proven or disproven in the new normal these emergency workers now inhabit. Fortunately, a portion of that unknown area has been addressed and some of the guesswork removed.
Acting pursuant to powers under the Governor’s Executive Orders 20-02 and 20-04, the Missouri Department of Labor and Industrial Relations, Division of Worker’s Compensation, has enacted Emergency Rule 8 CSR 50-5.005. This rule creates a presumption that any First Responder (as defined by RSMO 287.243) who has contracted or is quarantined for Covid-19 is presumed to have contracted the disease at work. Under the Emergency Rule firefighters and EMT’s will be presumed covered by worker’s compensation if any of the following occur:
- First Responder is quarantined at the direction of the employer due to a suspected Covid 19 exposure or display of symptoms;
- First Responder receives a presumptive positive Covid 19 test;
- First Responder receives a Covid 19 diagnosis from a physician;
- First Responder receives a laboratory confirmed Covid 19 diagnosis.
A First Responder would not be entitled to the presumption as stated if either of the following apply:
- A subsequent medical determination establishes by clear and convincing evidence that the First Responder did not actually have Covid-19, or;
- First Responder was quarantined or contracted the disease as a result of an exposure that was not related to the First Responder’s employment.
The Emergency Rule goes in to effect April 22, 2020, but it contains a retro-activity provision that will reach back at least until the initial Emergency Declaration on March 13, 2020. The presumption is rebuttable; however, the burden of proof for both rebuttal provisions requires clear and convincing evidence. Practically, the longer the state of emergency exists the more difficult it will become for an employer to disprove a First Responder’s exposure occurred in the workplace.
Guidance moving forward: Treat Covid-19 exposures, confirmed cases, and quarantines amongst First Responders as a presumed workplace exposure. Follow normal worker’s compensation process. (I would also suggest a proactive call to your work comp carrier to confirm their approach to this new rule.) Follow your own emergency policies/procedures in place for addressing Covid-19 in the workplace. Finally, for employers who believe they have reason to rebut the presumptions of worker’s compensation–carefully consider the burden of proof within the rule. If you feel grounds exist for denial of a claim, contact your work comp carrier directly and, as always, your attorney, to discuss what options may exist.
This Emergency Rule change was needed to take the guesswork out of coverage questions for first response agencies and employees alike. Firefighters, Medics, and EMT’s need to be able to do their jobs without the fear that an illness such as Covid-19 might not be covered under worker’s compensation. Agencies need answers to the questions surrounding coverage applicability when an exposure might be unknown. This rule addresses both.
Stay safe out there.