On March 16, 2020, the Department of Labor and Industry issued a press release stating Pennsylvania workers affected by the novel coronavirus (COVID-19) may be eligible for unemployment and workers’ compensation benefits.
Specifically, the Department of Labor and Industry notes employees may be eligible for unemployment compensation (UC) benefits if: the employer temporarily closes or goes out of business because of COVID-19; the employer reduces the employee’s hours because of COVID-19; the employee was told not to work because the employer feels the employee might get or spread COVID-19; or the employee was told to quarantine or self-isolate, or live/work in a county under government-recommended mitigation efforts.
On the heels of the DOL’s release, as many of you may know, Governor Wolf announced a state-wide shutdown of non-essential stores, bars and restaurants (excluding takeout and delivery), gyms, hair salons, casinos, venues, movie theaters, golf courses and shopping malls, in addition to numerous other businesses. So, employers should take heed and plan accordingly.
In order to deal with the virus most employers either have implemented or are in the process of implementing at-home work policies and models. For employers who are unable to transition to this work model, the result may be a litany of UC claims. Employees may have viable UC claims assuming they are financially eligible. There is a strong possibility these employees will be able to prove a “qualifying separation” as they will be laid off/unemployed through no fault of their own. Moreover, it is likely they will continue to maintain unemployment eligibility assuming they are physically capable of working. Further, since little work may be available in their respective fields, these employees will most likely not have difficulty showing they are actively seeking work.
Employers faced with these issues may consider flexible leave policies and use of accrued time off in situations where an employee is unable to work remotely or where the businesses are temporarily closed. The Secretary of the Department of Labor and Industry, Jerry Oleksiak, advised “the best option is for employers to offer their employees paid time off.”
In addition to unemployment compensation concerns, the Department of Labor and Industry also states if an employee feels he or she was possibly exposed to COVID-19 in the workplace, the employee might be eligible for workers’ compensation benefits either by notifying the employer to file a “disease-as-injury” claim or notifying the employer to file an “occupational disease” claim.
Under the first scenario, the employee would be required to show, through medical evidence, he or she was exposed to the virus in the workplace. An employee may have a viable claim if infected by a person at the employer’s location and the employee is able to prove he or she was not at anywhere elsewhere virus was reported.
Under the second scenario, however, the employee would have to show COVID-19 is occurring more in the employee’s occupation/industry than in the general population. This option would apply to workers who are more susceptible to the virus based on their occupation, such as workers in the healthcare industry, hospitals, doctors’ offices, and nursing homes. It is noteworthy that the Department of Labor and Industry mentions the option of an occupational disease claim, as COVID-19 is not currently listed under the Act. The Pennsylvania Workers’ Compensation Act specifically addresses “occupational diseases” such as poisonings, cancer, black lung, tuberculosis and Hepatitis C, and there is a rebuttable presumption for diseases like Hepatitis C. Diseases not specifically mentioned can be compensable if they meet the following criteria for determining whether a disease is occupationally related:
Employers should anticipate a number of unemployment compensation and workers’ compensation claims in the near future in relation to COVID-19.
Chartwell Law’s team of attorneys are continuously researching how COVID-19 will affect employers in Pennsylvania and across all states in which we practice. We will continue to inform you as information is obtained. As always, we are available to assist you as you navigate through these uncharted and challenging times.