Episode 85: Remote Work: Workers' Comp Liabilities

Welcome to the Workplace, a podcast by Kel Chamber. I'm Erica Frank, executive Vice president and General Counsel at the California Chamber of Commerce. Today on the podcast, we have a special guest, a workers compensation expert, Randy Pollack. Welcome, Randy.

Thank you, thank you, thank you for having me.

Oh, it's our pleasure. So. So for all of you. Randy is a certified specialist in workers compensation law and is the managing partner of the in house legal department at Pacific Compensation Insurance Company. He also edits the Workers Compensation Quarterly publication. So, Randy, a lot has transpired between May 5, when the governor signed his executive order related to workers compensation, and now August and also the expiration of the governor's executive order related to workers compensation and COVID 19. So it would be fun for us to all get together for you and I to talk today about getting caught up on where things are, where things stand with respect to workers compensation and workplace injuries in the midst of a pandemic.

Yeah, no, it's on the minds of everybody right now. This, of course, just the pandemic itself and how it's dramatically altered all of our lives. But the workplace issue, the workers compensation issue is a big issue for the employers in terms of not just, you know, what do they do, how do they handle safety issues, all that, but in terms of their financial responsibility. Some employers being self insured, some having insurance which has a premium and there's that expense there. So it's a lot of things on their minds in terms of safety, the expense, and then also all the anxieties that go with what we're going through right now. Anyways, if that's not all enough.

Yeah, exactly. So what makes this conversation very interesting and provides a different perspective is you're in house counsel at Pacific Compensation Insurance Company. So you're not a litigator out there in the trenches. What are you seeing? I mean, have you been observing claims? What are you hearing about workplace injury claims related to COVID 19?

I should note that my opinions mentioned today are mine alone and that they are not to be taken as a reflection of my employer or as I'm again the editor of the Workers Comp Quarterly for the cla. It's not a reflection on the cla as well, or the workers compensation section. Also, this is, you know, informational, educational information to help. But please, as always, consult independent legal advice if you have a specific legal issue that needs attention. Yeah, so good question. I do litigate, but currently from my perspective with these claims, there's not a lot of litigation. And I think that's Mainly because the timing currently where we just came out of the presumption expiring, although we could talk about in a minute the reality of the legislature coming in and sort of patching that, if you will. But we're coming out of that. The current situation is claims have a little bit longer of an investigation period without the governor's order. And many claims, as we've heard sort of anecdotally and in the data, is that they're relatively mild. So many, many claims are relatively mild cold flu like symptoms. And that's what we're seeing. So the more serious claims, you know, many of them do become accepted. And when, often when claims are accepted, there is not necessarily need for litigation. A worker may not need to have an attorney when everything's being taken care of for them. So from my broad perspective, we have not seen any litigation on these at this time. But again, it's an evolving story. We're again coming out of a situation where the presumption ended and we're in a sort of a middle zone right now. So stuff may start maturing into, you know, you may see more denied claims based on investigations. And then with that happens, people retaining attorneys and litigating these things through the system.

So I know that many of us, including you and me both, are remote employees still, and we oftentimes get questions on our Cal Chamber labor law helpline concerning remote work related injuries, things that are happening with employees at home, whether that means they trip over the dog bone or the kid's toy, or they actually get ill with COVID 19. Are those triggering events for a workers compensation claim?

Well, that's a good question. So it's more present now with the reality of remote work, work from home. But it's really not a new thing in the sense that people have been working from home for eons, not eons, but quite a while. And there is some actual case law and some good case law, Supreme Court, California Supreme Court decisional authority that addressed the concept of work from home, I think it was back in the 1980s and set out some parameters here. So there is some good framework to work with on a legal perspective to deal with the increase in remote work that you're seeing now. So yes, there can be a workplace injury happening at home. There's a few requirements to make that happen. And that's one. It has to be within the course of employment and rising out of the employment. Whatever happened, based on the law that I just described, there has to be a situation where the employer either requires explicitly or implicitly that the worker work from home with that, then that would satisfy the requirement that it be in the course of employment. But then beyond that, the question of I think you're alluding to with the dog bone or something like that, and did what happened to the person while working from home, did that bear any work connectedness to the job? And certainly that's going to be the best lawyer's response. It depends on the fact. And so it's a very factual scenario. But even the dog bone scenario could be. It just depends. But I'll say, generally speaking, the hardest thing in these work from home situations is establishing that required piece. And if you've established that required piece that it does becomes within the course of employment, then very broadly, many things that are going to happen in that setting are going to be considered arising out of employment. It's a very easy standard to satisfy. The idea of what happened had some level of work connectedness, for example, if you're working from home required. So therefore it's going to be course of employment. If you go use the restroom and something happens while you use the restroom, there's a personal comfort doctrine and workers comp. That brings that within the employment sphere. So that's going to be within the employment bargain at that point and have exposure. So it's probably, again, it's something that's existed for a long time and people that have traditionally had work from home, people working for them have been aware of this and have to deal with it. But as we have an influx of new people doing it, employers may not fully recognize that piece that they tell everybody, go work from home. And now what's the consequence of that? So I think that's going to be a new, not new, sorry, a rude awakening maybe for some employers to confront that reality.

Well, and along those lines, if an employee does have a work from home related injury that they're claiming is work related, should employers go ahead and start the claim process and let the claim administrator work through the weeds and do the fact analysis to determine whether or not it does arise to a workers compensation. Compensation claim?

Yeah, so that's an excellent question, especially against this backdrop of this is. Yeah, this is really important against this backdrop of this influx of working from home and maybe employers not fully recognizing that this is now if they're requiring their workers potentially workplace for purposes of injuries. So against that backdrop and then against the backdrop of a lot of confusion about when you even need to provide a claim form and report something to your carrier, I think that's an excellent question. Let me unpackage it a little bit. So certainly if you do have a required work from home employee and they report something to you, whatever the dog bone situation or something, it doesn't matter as you or the employer whether you feel that that is a workplace injury or not, meaning, oh well, that will be legally barred by X, Y and Z or that's not, that's, that's a material deviation. XYZ or whatever you're going to try to think, it doesn't matter what you think. The person has asserted a workplace injury that triggers the requirement to provide a claim form. The end doesn't matter what you feel about it. Same thing goes for anybody that's asserting a Covid claim. That's a major piece that's happening right now where people think, well, you got Covid from, you know, you living at home with a nurse or something like that, where they probably brought it in. So it doesn't matter what you feel as the employer, where that came from. The fact is, if someone walks in and tells you, I think I got Covid from my work, even without a positive test, that triggers the requirement to issue a claim form. So that's piece one. The second part is reporting it to the carrier. Now that's a little bit different. There's a little bit of a disconnect between the law on the requirement to provide a claim form and the law on reporting it to your carrier. And so that's the law essentially is that you have to have, if there's missed time beyond the work shift or treatment beyond first aid, that triggers a requirement to report it to your carrier, even if no claim form has been filed. But I would recommend if anybody does encounter a situation, they do consult their, their carrier as to what needs to be reported because there may be specific policies that are built into any insurance company coverage policy that they need to consult that. So there may be, although that's the law, there may be something else in play that they need to consult.

Randy, that was so helpful. It's such great information because I know that is a question that looms for a lot of employers. And I think you really hit the nail on the head, so to speak, when you talked about the fact that it's not for the employer to decide whether or not it's work related. Your obligation is to process the claim and let your carrier do the magic and do all the grunt work, so to speak, on making that determination. I think that's a very significant information for our listeners to have today. So thank you very much. So as you said, it's an evolving situation. Things continue to change and it might be too early to see whether there's any litigation that comes out. It might be too early to really assess how many workers comp claims we see related to COVID 19 and not just on the illness itself, but as we've been talking about work related injuries. Is there anything that you'd like to leave for our listeners on some best tips, quick tips, you know, things that they can keep in the back of their mind as we continue to go through the ever changing year of 2020?

Yeah, stay safe.

Wear a mask. Aside from those types of things. Yeah, I'd say that, you know, for the employers it's look, the reality is you employ people, these are within your domain, they're your responsibility to care for their safety. And you look at the Cal OSHA website and it has all kinds of detailed safety information about how to take care of protect your employees with not moving beyond just mass and social distancing, but all kinds of safety protocols. So I think to have a good faith mindset to protect your employees in this very sort of serious time and then to follow the law in terms of if someone is alleging a work injury to follow the correct procedure there so they can get taken care of and then also is to your benefit aside from just the goodwill of and the good aspect of taking care of your employees, it is a liability protection because once you follow the correct procedures and doing the claim form and reporting it, then you have secured your ability to assert any defenses and avoid any kind of presumptions or anything like that that can occur with some kind of defect in your handling of that. So it's important to follow that. It's for your. It's not just for the workers benefit, it's also for your benefit in the event that you need to use or assert some kind of defenses. So that would be my message. Just care for your employees, follow the law and try to keep everybody safe. And then if unfortunately something does happen and it is work related to get people back to work and get them better as soon as possible.

Thank you so much, Randy. I really appreciate you coming on the podcast today and we'll have you back again soon. Maybe we'll have more positive things to talk about as well as we move through 2020. Thank you all once again for joining us on the workplace. Thank you. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber. Com.