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MINNESOTA WORK COMP COVID PRESUMPTION RETURNS

We’ve previously reported on a causation presumption applicable to COVID-19 and Minnesota Workers’ Compensation Law that was enacted in April of 2020.  The law contained a “sunset date” and ended at 11:59 PM on December 31, 2021.  By action of the legislature and Governor, the presumption has now returned.  Minn. Stat. 176.011 subd 15(f) has been revived and reenacted.

On February 4, 2022, Governor Walz signed into law H.F. 1203 which extends workers’ compensation benefits to certain frontline workers who contract COVID-19, by way of a rebuttable presumption.  The action reinstates the previous presumption applicable only to the listed occupations, and covers dates of injury beginning on the date of enactment through January 13, 2023.

Employees with dates of injury occurring from January 1, 2022, until the law was revived and went into effect are not entitled to the presumption.

If you have questions regarding COVID cases and workers’ compensation, whether within or outside the reach of the presumption, please contact us.  We are happy to assist you.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

 

COVID-19/CORONAVIRUS – RECENT DEVELOPMENTS REGARDING MANDATORY VACCINATION REQUIREMENTS FOR EMPLOYERS

A great deal of uncertainty has surrounded employers’ obligations under the OSHA “vaccine or testing” regulation (the “OSHA ETS”) and the Centers for Medicare and Medicaid Services (“CMS”) interim final rule (the “CMS IFR”) requiring certain health care providers to ensure that its employees are vaccinated for COVID-19. With two recent orders from the U.S. Supreme Court, some of that uncertainty has been removed.

The Supreme Court issued an order on January 13, 2022, staying enforcement of the OSHA ETS. This means that OSHA can no longer enforce the “vaccine or testing” regulation against employers with 100 or more employees (“Large Employers”) that was set to go into effect.

The same day the Supreme Court issued a separate order upholding the CMS IFR. This means that the much smaller subset of Medicare or Medicaid-reimbursed employers will need to take steps to ensure that their employees are vaccinated for COVID-19 in a manner consistent with those regulations.

Employers who are not required to comply with a mandatory vaccination regulation are still entitled to develop and implement mandatory vaccination policies, subject to certain exceptions.

 

OSHA ETS REQUIREMENTS FOR EMPLOYERS WITH 100 OR MORE EMPLOYEES ARE STAYED AND LARGE EMPLOYERS ARE NOT REQUIRED TO MANDATE VACCINES OR REQUIRE TESTING FOR UNVACCINATED EMPLOYEES

On Thursday, January 13, 2022, the Supreme Court issued an order staying enforcement of the OSHA ETS, and sent the case back to the lower courts for further proceedings. This means, at least for the time being, that “Large Employers” who would have been subject to the OSHA ETS (employers with 100 or more employees), will not be subject to the “vaccine or test” requirements of the rule for the foreseeable future. Because the Supreme Court did not invalidate the OSHA ETS outright, it remains possible that the OSHA ETS may be upheld and enforced at some point in the future (or that other requirements will be formally adopted by the normal administrative rule-making process).

Minnesota Occupational Safety and Health Administration (“MNOSHA”) recently adopted the requirements of the federal OSHA ETS in its own rulemaking issued on January 3, 2022. Given the U.S. Supreme Court’s decision, MNOSHA has suspended enforcement of its requirements pending future developments. See MNOSHA Press Release.

 

EMPLOYERS OF MEDICAL PROVIDERS GOVERNED BY THE CENTERS FOR MEDICARE AND MEDICAID SERVICES REMAIN OBLIGATED TO MANDATE VACCINATIONS OF STAFF

For employers subject to the Centers for Medicare and Medicaid Services (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS IFR”), the Supreme Court issued a separate order on January 13, 2022, that upheld the regulation (by reversing a stay issued by a lower court that applied in some 25 states). On its website, CMS has issued guidance to those certain Medicare or Medicaid reimbursed employers in the healthcare industry who are subject to the CMS IFR (“Healthcare Employers”).

 

**Please note that the CMS guidance (the “Guidance”) was published on December 28, 2021, before the U.S. Supreme Court issued its order upholding the CMS IFR. The Guidance notes that certain states are not subject to the CMS IFR “at this time.” We believe CMS is now free to enforce its mandatory vaccination regulations in all states—and that this language no longer applies—given the U.S. Supreme Court’s decision upholding the CMS IFR.**

 

To assist Healthcare Employers in understanding the requirements of the CMS IFR, CMS published a PDF that contains general guidance to employers subject to the CMS IFR mandatory vaccination requirement. In summary, Healthcare Employers must ensure, within thirty (30) days following the date of the Guidance (i.e., January 27, 2022), that:

  • Policies and procedures are developed and implemented for ensuring that all facility staff, regardless of clinical responsibility or patient or resident contact are vaccinated for COVID-19; and
  • 100% of staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is compliant under the rule; or
  • Less than 100% of all staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption, or identified as having a temporary delay as recommended by the CDC, the facility is non-compliant under the rule. The facility will receive notice of their non-compliance with the 100% standard. A facility that is above 80% and has a plan to achieve a 100% staff vaccination rate within 60 days would not be subject to additional enforcement action. States should work with their CMS location for cases that exceed these thresholds, yet pose a threat to patient health and safety. Facilities that do not meet these parameters could be subject to additional enforcement actions depending on the severity of the deficiency and the type of facility (e.g., plans of correction, civil monetary penalties, denial of payment, termination, etc.).

Healthcare Employers are subject to additional compliance requirements at both the sixty (60) day mark (i.e., February 26, 2022), and the ninety (90) day mark (i.e., March 28, 2022), which are detailed in the Guidance. In short, CMS has indicated that it intends to begin taking enforcement action against Healthcare Providers who are remain less than fully compliant with their employee vaccination obligations on March 28, 2022.

In addition, CMS also published PDFs that cover specific requirements for Healthcare Employers, depending on the particular CMS reimbursement program in which the employer participates, as follows:

  1. Ambulatory surgical centers (42 C.F.R. § 416.51);
  2. Hospice care providers (42 C.F.R. § 418.60); C
  3. Inpatient psychiatric service providers (42 C.F.R. § 441.151);
  4. Programs of all-inclusive care for the elderly (PACE) (42 C.F.R. § 460.74);
  5. Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals and rehabilitation hospitals/inpatient rehabilitation facilities) (42 C.F.R. § 482.42);
  6. Long-term care facilities (including skilled nursing facilities and nursing facilities, generally called nursing homes) (42 C.F.R. § 483.80);
  7. Intermediate care facilities for individuals with intellectual disabilities (42 C.F.R. §§ 483.430; 483.460);
  8. Home health services (42 C.F.R. § 484.70);
  9. Comprehensive outpatient rehabilitation facilities (42 C.F.R. §§ 485.58; 485.70);
  10. Critical access hospitals (42 C.F.R. § 485.640);
  11. Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (42 C.F.R. § 485.725);
  12. Community mental health centers (42 C.F.R. § 485.904);
  13. Home infusion therapy suppliers (42 C.F.R. § 486.525);
  14. Rural health clinics/federally qualified health centers (42 C.F.R. § 491.8); and,
  15. End-stage renal disease facilities (42 C.F.R. § 494.30).

If your organization falls under one of these reimbursement programs, please review the CMS guidance specific to your organization for more information about your specific compliance obligations. If you have questions about your organization’s obligations arising under the CMS IFR, one of the attorneys on the employment team at Lind, Jensen, Sullivan & Peterson, P.A. would be happy to assist you.

 

EMPLOYERS REMAIN FREE TO IMPLEMENT THEIR OWN MANDATORY VACCINATION OR TESTING POLICIES, SUBJECT TO POSSIBLE MEDICAL OR RELIGIOUS EXEMPTIONS

Although Large Employers not subject to the CMS IFR will not be required by law to ensure their employees are either vaccinated or tested weekly, all employers – regardless of size – remain free to develop and implement policies requiring employees to be fully vaccinated as a condition of their employment. Such policies must contain processes for considering requests for exemptions from the mandatory vaccination requirement on the basis of the employee’s medical history, disability status, or sincerely-held religious belief.

 

If you have any employment or other questions regarding the ongoing COVID-19 pandemic as it relates to your employees, please do not hesitate to contact our employment team at Lind Jensen Sullivan & Peterson, P.A. by email or phone at (612) 333-3637.

Bill Davidson – Bill.Davidson@lindjensen.com
(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com
(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com
(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com
(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com
(612) 746-0174

 

Minnesota Work Comp Presumption For COVID-19 Ended December 31, 2021

This news blast is to remind you that the presumption applicable to COVID and Minnesota workers’ compensation law ended at 11:59 PM on December 31, 2021.

We have previously issued announcements concerning the COVID presumption as contained in Minn. Stat. §176.011, Subd. 15(f).  Please check our website for more information.

The presumption that took effect in April 2020, has now ended.

For injury dates from April, 2020, through the end of 2021, an employee is covered by the presumption if that employee worked in one of the listed categories of employment:

  • Peace officer as defined by Stat. §626.64, Subd. 1;
  • Firefighter;
  • Paramedic;
  • Nurse, health care worker, corrections officer or security counselor employed by the state or a political subdivision at a corrections, detention or secure treatment facility;
  • Emergency medical technician;
  • Health care provider, nurse or assistive employee employed in a health care, home care or long-term care setting with direct COVID-19 patient care or ancillary work in COVID-19 patient unit;
  • Workers required to provide child care to first responders and healthcare workers under Executive Order 20–02, and Executive Order 20–19.

The employee’s COVID-19 must be confirmed by a positive laboratory test, or if a laboratory test was not available, the employee was diagnosed by a licensed physician, licensed physician assistant, or a licensed advanced practice registered nurse based on employee’s symptoms.  A copy of the positive laboratory test or the written diagnosis of the clinician shall be provided to the employer or insurer.

If the statutory provision is satisfied, the employee is presumed to have a compensable occupational disease, unless the presumption is rebutted by the employer or insurer by showing the employment was not a direct cause of the disease.  The burden of proof shifts to the defense.

REMAINING MORE LIMITED PRESUMPTION

Because the COVID specific presumption is no longer available for dates of injury after December 31, 2021, an employee may potentially raise a presumption that remains in the statute regarding infectious and communicable disease.

The infectious disease presumption is contained in Minn. Stat. §176.011, Subd. 15 (b). This applies only to certain, listed occupations.  It covers employees who contract an infectious or communicable disease in the course and scope of employment, outside of a hospital. If the provisions of this infectious or communicable disease presumption are met, then the injury is compensable unless the employer rebuts the presumption by showing substantial factors. Any substantial factors used to rebut the presumption that are known to the employer and insurer at the time of denial shall be communicated to the employee in that denial of liability.

SUMMARY

Please reach out to us to discuss COVID claims – whether before or after the effective dates of the presumption.  Minnesota’s occupational disease statute provides that in general, ordinary diseases of life (note that “ordinary” does not mean the disease isn’t potentially severe or dangerous), such as COVID-19 are not compensable. A disease arises out of employment only if there is a direct, causal connection between the disease and conditions of the work, and the occupational disease is a result of exposure occasioned by the employment. An employer is not liable for compensation for an occupational disease that cannot be traced to the employment as a direct and proximate cause, or for an injury that results from a hazard to which the employee would have been equally exposed outside of employment. Minn. Stat. §176.011, Subd. 15, generally.

These situations require substantial case-by-case analysis at the time compensability is determined, and we look forward to working with you and answering your questions.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com

https://www.lindjensen.com

Recent Workers’ Compensation Laws Regarding the Covid-19 Vaccine

Workers’ Compensation Laws Regarding Covid -19 Vaccine

Timothy P. Jung – timothy.jung@lindjensen.com

Mark A. Fredrickson – mark.fredrickson@lindjensen.com

Katie H. Storms – katie.storms@lindjensen.com

Molly H. de la Vega – molly.delavega@lindjensen.com

 

Updated Guidance Relating to an Employer’s Potential Right to Require Employee Vaccinations

On December 16, the Equal Employment Opportunity Commission issued updated guidance relating to an employer’s potential right to require employee vaccinations.  Attached is an update Lind, Jensen, Sullivan & Peterson prepared discussing the EEOC’s newest guidance and other considerations as employers evaluate whether they can, or should, mandate employees to get a Covid-19 vaccination. COVID-19 Guidance re Vaccinations – Employer Update

COVID-19 and Work Comp Update – Legislature Passes New Presumption

On April 7, 2020, Governor Walz signed a bill put forth by the state legislature creating a presumption that certain categories of employees who contract COVID-19 are entitled to workers’ compensation benefits. In COVID-19 and Work Comp Update – Legislature Passes New Presumption, we take an in-depth look at the new legislation and what it will mean for employers and insurers moving forward. This law is effective April 8th, and covers injuries from April 8, 2020 through May 1, 2021.

We look forward to answering your questions and assisting you with navigating this complicated legislative framework.

Timothy P. Jung – timothy.jung@lindjensen.com

Mark A. Fredrickson – mark.fredrickson@lindjensen.com

Katie H. Storms – katie.storms@lindjensen.com

Molly H. de la Vega – molly.delavega@lindjensen.com

 

Families First Coronavirus Response Act (FFCRA) Update – April 1, 2020

Last night, on April 1, the U.S. Department of Labor issued a temporary rule that provides further detail about how to interpret the Families First Coronavirus Response Act (FFCRA).  As you know, the FFCRA became effective yesterday.

An introduction and overview of the temporary rule, along with links to other helpful resources and information from the DOL can be found here:

https://www.dol.gov/agencies/whd/ffcra

The DOL’s press release relating to the new temporary rule can be found here:

https://www.dol.gov/newsroom/releases/whd/whd20200401

The temporary rule itself runs over 100 pages, and the official published version is scheduled for release on April 6.  In the meantime, an unpublished PDF version of the temporary rule can be found here:

https://www.federalregister.gov/documents/2020/04/06/2020-07237/paid-leave-under-the-families-first-coronavirus-response-act

We expect that this new temporary rule will help to answer many of the questions that are arising about the FFCRA in practice.  Given its length, and given the different fact-specific issues that are arising depending on your organization’s operations, you should review the temporary rule to see how it might affect the decisions your organization is making and how you might be affected by the FFCRA.

We are continuing to monitor developments and provide guidance and directions regarding the FFCRA and other related employment issues and challenges to the COVID-19/coronavirus situation.

If you have specific questions, please contact any of these lawyers at the Lind, Jensen, Sullivan & Peterson firm:

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

COVID 19 – Business Interruption Insurance

The COVID-19 pandemic has had and will continue to have drastic impacts on the economy and many businesses will experience steep financial losses.  It is anticipated many businesses will look to their first party property coverage and try to assert claims for business interruption or business loss coverage.  Here is an article highlighting the issues that will be prevalent for such claims: COVID 19 Business Interruption Insurance

Update 9 DOL Guidance Update RE Families First Coronvirus Response Act March 30, 2020

Late Thursday night March 26 and again on Friday March 27, the U.S. Department of Labor issued updated guidance as to its interpretation of the Families First Coronavirus Response Act (FFCRA).  Update 9 DOL Guidance Update RE Families First Coronavirus Response Act March 30, 2020-125475 is an update as to some common questions and answers you might have concerning the new requirements of the FFCRA, which becomes effective April 1.

Please contact our employment legal team if you have specific questions.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

DOL Guidance RE Families First Coronavirus Act Released March 25th

On March 24, 2020, the United States Department of Labor issued some guidance for employers regarding the Families First Coronavirus Response Act. Importantly, the guidance states that the effective date of the Families First Coronavirus Response Act is APRIL 1, 2020, not April 2, 2020, as initially expected. Our lawyers have summarized the DOL’s guidance here, DOL Guidance RE Families First Coronavirus Response Act Released March 2…

Please do not hesitate to contact our employment team if any questions arise.

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Families First Coronavirus Response Act & Taking Temp of Employees UPDATE – Employer Update

Last night, President Trump signed into law the Families First Coronavirus Response Act, implementing bipartisan legislation and changes underscored in the Emergency Family and Medical Leave Expansion Act in response to the recent pandemic.

So, what does that mean for you – as an employee and as an employer? At Lind, Jensen, Sullivan, & Peterson, P.A., we are committed to providing you with information to help you make the right decisions both personally and professionally, and we’re here for you. Day or night.  In Families First Coronavirus Response Act & Taking Temp of Employees- Employer Update, we analyze the new law for you, and address recent guidance from the EEOC relative to taking temperatures of employees at work.

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

DHS Given Power to Waive or Modify Requirements by Executive Order – Employment Update

As Minnesota takes steps to respond to the COVID-19 pandemic, measures are being taken to provide relief to employers and service providers throughout the state. On March 21, 2020, Governor Walz issued two new Executive Orders (11 & 12) that gives the Department of Human Services (DHS) the power to modify and waive existing requirements to allow in-state programs to better provide service to those in need. In DHS Given Power to Waive or Modify Requirements by Executive Order – Employment Update, we take a look at DHS’ power and the requirements already waived by DHS.

 

In just a few days DHS has already made many waivers/changes, and we anticipate additional in the coming days. We recommend continued monitoring of DHS’ website for up-to-date information: https://mn.gov/dhs/waivers-and-modifications/

 

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

Furlough v. Layoff – Employment Update

As employers around Minnesota are facing difficult decisions due to the COVID-10 pandemic, we have prepared an updated resource to assist you as your organizations analyze difficult decision.  In Furlough v. Layoff – Employment Update, we examine the difference between a furlough and layoff, what those processes generally look like, and identify some common issues that can arise (including COBRA notices, WARN notice, requirements under the Older Workers Benefit Protection Act, etc.)

Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Executive Orders Re Commercial Carriers and Executive Branch Employees – Employment Guidance Update

While Minnesota reacts to the Coronavirus pandemic, Governor Walz has issued Executive Orders to help the State respond.  In Executive Orders Re Commerical Carriers and Executive Branch Employees – Employment Guidance Update, we analyze Executive Orders 20-06 and 20-07.

Executive Order 20-06 aims to provide motor carriers and drivers in Minnesota relief as they help with emergency relief measures.  Certain limitations, including weight and hours of service, have been modified to allow commercial carriers to better respond to the pandemic.

Executive Order 20-07 instructs the Commissioner of Management and Budget to develop and implement paid leave for executive branch employees, and explores ways the State can better mobilize executive branch employees to respond to the pandemic.

Things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal guidance on additional emergency procedures being considered to provide relief to employers and employees.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

Coronavirus Layoff Guidance – Employer Guidance Update

As the reality of doing business in the midst of the COVID-19 pandemic is becoming known, employers are having to take a hard look at their options in these trying times.  In Coronavirus Layoff Guidance – Employment Guidance Update, we address common questions you may be asking while weighing your options.

As with everything right now, things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal guidance on emergency procedures being considered to provide relief to employers and employees.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

Families First Coronavirus Response Act – Employer Guidance Update

In response to the COVID-19/coronavirus pandemic, the U.S. House of Representatives passed the Families First Coronavirus Response Act (FFCRA) (H.R. 6201) on March 14, 2020.  In Families First Coronavirus Response Act – Employer Guidance Update, we address what FFCRA will mean for employers and employees.

As with everything right now, things are changing frequently.  We encourage you to monitor the CDC and MDH websites, as well as monitor the progress of state and federal relief measures.  We will continue to provide updates in the coming days.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

 

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

 

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

 

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

 

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

 

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

 

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

 

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

COVID-19/CORONAVIRUS EMPLOYER CONCERNS AND QUESTIONS

COVID-19 is changing (temporarily) how we do business.  With these changes many employment questions arise: can we take the temperatures of our employees?  Can we send people home who are sick?  Can we stop our employees from traveling?  And so on.

We at Lind Jensen Sullivan & Peterson are here to help.

In COVID-19 Employment FAQs, we address the most common questions you will likely face.  As with anything right now, things are changing by the day and hour.  We encourage everyone to monitor the CDC and MDH websites for up to date guidance (listed below).  We will be updating these FAQs as necessary in the coming days as well.

As always, we are committed to helping you and your organizations through these trying times.  Please do not hesitate to contact our employment team if any questions arise.

Bill Davidson – Bill.Davidson@lindjensen.com

(612) 746-0147

 

Susan Stokes – Susan.Stokes@lindjensen.com

(612) 746-0104

 

Pat Larkin – Pat.Larkin@lindjensen.com

(612) 746-0154

 

Ryan Myers – Ryan.Myers@lindjensen.com

(612) 746-0157

 

Molly de la Vega – Molly.delaVega@lindjensen.com

(612) 746-0174

Centers for Disease Control – https://www.cdc.gov/coronavirus/2019-ncov/index.html

Minnesota Department of Health – https://www.health.state.mn.us/diseases/coronavirus/index.html

 

 

 

COVID-19 AND WORKERS’ COMPENSATION IN MINNESOTA

What is COVID-19?

COVID-19 is a novel coronavirus, a new strain identified in 2019.  It is different than coronaviruses that are common in the community.   These have been in our midst since the mid-1960s.

We have had severe strains in the past, some of which you may have heard of including SARS and MERS.  The term corona is used because the virus has a crown-like spike on its surface.  COVID-19 was first identified in Wuhan, China and since has spread throughout the world.

This virus easily spreads from person to person.  Researchers describe it as spread between people who are in close contact with one another, generally within 6 feet.  The CDC reports that most people spread the contagion when they are symptomatic, but they do not rule out that someone can be contagious before symptoms arrive.

When Should an Employer Fill out a First Report of Injury?

A First Report of Injury documents a known injury or an employee report of a potential injury.  It is not a determination of whether an injury occurred or is compensable.

A First Report of Injury is defined in Minnesota Rule 5220.2530, and discussed in Minn. Stat. § 176.231.

We recommend that an employer file a First Report of Injury whenever it has reason to believe a work-related injury occurred, and when an employee reports an alleged work-related injury.  The obligation to proceed with a First Report of Injury does not commence when an employee reports a health condition or that they are ill.

For example, if the employee reports “I am missing work today because I am sick and I believe I have COVID-19”, that would not trigger a basis for filing a First Report of Injury.

By contrast, if the employee reports “I was working with a client, Jane Doe, who has a positive test result for COVID-19.  I was assisting her in close quarters.  I now have been diagnosed with COVID-19 and believe it is connected.”  At that point it is recommended that a First Report of Injury be prepared. The insurer or administrator can then undertake additional investigation to determine whether primary liability should be admitted or denied.  A First Report of Injury is filled out regardless of later investigation and verification.

Evaluating Primary Liability For Occupational Disease

Minnesota law provides workers’ compensation coverage for personal injuries and occupational diseases that arise out of the course and scope of employment.  Occupational disease is defined carefully in Minn. Stat. § 176.011, subd. 15.

Occupational disease generally excludes ordinary diseases of life to which the general public is equally exposed.  The statute provides that an ordinary disease of life to which the general public is equally exposed outside of employment, is not compensable unless the disease follows directly from the employment.

An occupational disease arises out of employment only if there is a direct causal connection between the work, or the conditions under which the work is performed, and the disease. The occupational disease must be the result of exposure occasioned by the employment.

The statute is clear that “an employer is not liable for compensation for any occupational disease which cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to the occupation/employment, or which results from a hazard to which the worker would have equally been exposed outside of the employment.

There must be a proved connection between the ordinary disease of life and exposures on the job.  The exposure must be directly caused by the work or the conditions under which the work is performed.  The key language is that the disease is not compensable if it cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to that occupation.

Presumption – First Responders/Emergency Medical

According to Minn. Stat. § 176.011, subd. 15 (b), if immediately preceding the disablement the individual by nature of their job provides emergency medical care, or is an employee working as a licensed police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care, a presumption of compensability applies.  If that employee contracts an infectious or communicable disease to which the employee was exposed during the course of employment outside of a hospital, then the disease is presumptively an occupational disease and shall be presumed to have been due to the nature of employment. This presumption may be rebutted by substantial factors brought by the employer or insurer.  Any substantial factors used to rebut the presumption which are known to the employer or insurer must be communicated to the employee at the time of denial.

You will note that this presumption is narrowly drafted.  They have to be a provider of emergency medical care or employed as a police officer, firefighter, paramedic, state correctional officer, emergency medical technician, or licensed nurse providing emergency medical care.

They must be exposed to the disease in the course and scope of their employment and it must be outside of a hospital.

If the conditions of this presumption are not met, then the employee has the burden of proof to establish the disease and that it arose out of the employment and is recognized as a hazardous characteristic of and peculiar to that employment.

As injury reports are filed, we invite you to give our office a call to discuss the evaluation of compensability within the framework outlined above.

RISK MANAGEMENT

In the meantime, as this fast-moving pandemic and risk is evaluated, we recommend robust risk management activities.  It would be appropriate to contact your insureds, members, and employers to firm up and bolster all appropriate hygiene standards, best practices, and protocols.

We welcome your phone calls.  We have experience dealing with all nature of work injuries and occupational disease, including exposures to viruses, pathogens, chemicals, and bodily fluids.  We have substantial experience dealing with public employers, medical providers, first responders, and law enforcement personnel.

Please do not hesitate to contact the Lind Jensen Sullivan & Peterson Workers’ Compensation Team with any questions.

Timothy P. Jung – timothy.jung@lindjensen.com
Mark A. Fredrickson – mark.fredrickson@lindjensen.com
Katie H. Storms – katie.storms@lindjensen.com
Molly H. de la Vega – molly.delavega@lindjensen.com