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April 27, 2009

Swine Flu Meets Workers Comp

It's only Monday morning and many of us are just refocusing after a weekend of gardening, football drafts, NBA playoffs, baseball (Ellsbury steals home!), so we are probably not quite ready to think about the unthinkable: a potential swine flu pandemic, originating in Mexico and already active in several major American cities.

Here is the official government announcement (which appears to circumvent potential panic by burying the bad news in gov-speak):

As a consequence of confirmed cases of Swine Influenza A (swH1N1) in California, Texas, Kansas, and New York, on this date and after consultation with public health officials as necessary, I, Charles E. Johnson, Acting Secretary of the U.S. Department of Health and Human Services, pursuant to the authority vested in me under section 319 of the Public Health Service Act, 42 U.S.C. ยง 247d, do hereby determine that a public health emergency exists nationwide involving Swine Influenza A that affects or has significant potential to affect national security.
[Where, oh where, do they learn to write like that?]

As is our custom, we focus on the implications for workers comp. Back in 2005 we blogged the ramifications of smallpox exposure from the comp perspective. The smallpox exposure - a result of the terrorism scare - proved to be a false alarm. The swine flu, unfortunately, appears to be all too real.

The Comp Dimension
It's not difficult to isolate the kinds of activities that might expose an individual to the Swine flu. Many of these exposures are prevalent in the world of work:
: travel
: frequenting congested areas (travel terminals, public transportation, classrooms, etc.)
: touching anything handled by strangers
: eating out
: meeting business colleagues from around the country and around the world

In order for the flu to be a compensable event under comp, certain requirements must be met:
: the individual must be "in the course and scope of employment" when exposed to the virus
: the exposure must arise out of work (as opposed to being a totally random event)
: work itself must put the individual in harm's way

An individual commuting to work via public transportation might have high risk exposure, but flu caught on a subway or bus would not normally be covered by comp. But if the exposure stems from company-provided transportation (for example, a van), the subsequent illness might well be compensable.

If one worker in a closed environment brings the flu to work, co-workers who succomb to the virus can make a good case that the illness is work related. The initiator, however, would not have a compensable claim, unless he/she could demonstrate a definitive work-related exposure.

Health workers are on the front lines of any pandemic. Even though it might be impossible to prove that they actually caught the virus at work, any and all cases of Swine Flu are likely be compensable.

If you fly on an airplane on company business and the person next to you is sneezing and coughing, your exposure is work-related and the subsequent illness is likely to be compensable. If you are flying to visit Aunt Martha, you are on your own.

The comp system is not well equipt to deal with illness. It's usually very difficult, if not impossible, to determine exactly when an individual actually caught the virus. With state laws varying in their assumptions of compensability, with a multitude of insurance carriers and third party administrators making compensability determinations, we will see a crazy quilt of decisions regarding the compensability of swine flu.

There is a lot of money at stake in these compensability decisions. For mild cases, the issue is moot. It's the more severe cases - prolonged illness and even death - that raise the greatest concerns. While thus far the fatalities have been limited to residents of Mexico, if the feared pandemic occurs, there will be prolonged illness and even fatalities in the states. Then the crucial decisions regarding compensability will directly impact the future cost of workers comp insurance.

What is to be Done?
So how should employers handle flu exposures? For a start, educate employees on prevention. The above government website has some helpful hints - and they are actually written in plain English; unfortunately, they are only written in English.

Any employee showing up at work with flu symptoms should be sent home immediately. And if any employee appears to come down with the flu while "in the course and scope" of employment, employers should report the illness to the insurer/TPA, so that a proper compensability determination can be made. As in all things comp, it is usually a mistake for the employer to make assumptions about compensability. When in doubt, report the illness and let the experts determine what to do.

As the world lurches from one crisis (economic) to another (pandemic), it is all too clear that we have fulfilled the Chinese (?) curse: "May you live in interesting times." We do, indeed.


Posted by Jon Coppelman at 11:00 AM Link to, Comment (2), or E-mail this post
Comments

I'm curious to see how avidly carriers contest these claims. As you say, if swine flu becomes widespread any compensation claims stemming from infections could be near-impossible to prove.

Posted by: Alex Tilitz at April 27, 2009 11:47 AM

If the swine flu spreads in the US, we are going to need workers compensation laws to step up and let employers take the proper actions to ensure the flu is not spread even more & employees are taken care of properly. The priority here is our health and safety.

Posted by: John A. Snyder at April 29, 2009 10:55 AM
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