COVID 19: How Essential Employees can Protect Their Legal Rights in the Event They are Symptomatic or Test Positive

If you are an essential employee and become symptomatic or test positive for COVID there are several steps that you should take in order to protect your legal rights.  There are many unknowns with regard to the virus or the long term effects or disabilities it may cause.  Many employees can point to specific exposures at work prior to becoming symptomatic or being diagnosed with COVID 19.  Other first responders, essential employees and healthcare workers are constantly exposed to the virus based on their ordinary job responsibilities.

These are the steps which we believe workers should take in order to best preserve their rights.

  • If you believe you were exposed at work, notify your supervisor as soon as you become symptomatic or test positive. File a written notice or report with your employer containing the date and time of the exposure.  This is similar to the procedure for reporting a work-related accident.  If your job does not have a formal procedure for reporting on the job accidents, incidents or exposures, notify your supervisor via email in order to document the claim.
  • If you cannot point to a specific exposure, then once you test positive or become symptomatic, you should notify your supervisor that you contracted COVID 19 as a result of your employment due to multiple and repetitive exposures at work.
  • We recommend that you prepare and keep a log containing as much detail as possible regarding facts and circumstances demonstrating your exposure at work. This should include but is not limited to, co-workers who appeared to be symptomatic, co-workers of which you were aware tested positive, patients or clients that you worked with who were symptomatic or tested positive.  Please be sure to record the days, length of time, and closeness of proximity to which you were required to work with these individuals or groups.  Please also include the supervisors that knew that you were working with these individuals or in these conditions.  We recommend that you record as much detail as possible regarding your on the job environment while the details are fresh in your mind.  These details will likely be very helpful to the attorney advising you on your case.
  • A C-3 Form or “Employee’s Claim for New York State Workers’ Compensation” should be filed with the NYS Workers’ Compensation Board in the event a worker becomes symptomatic or tests positive for COVID 19. This should be filed as an accidental claim, not as an occupational disease.  We recommend that workers affected consult with an attorney practicing in New York State Workers’ Compensation Law for advice prior to completing and submitting this form.
  • In order to go forward with these claims, an injured worker will need to provide medical evidence from a treating doctor indicating that the employee contracted COVID 19 as a result of their job within a reasonable degree of medical certainty. If the injured worker is out of work due to a COVID 19 diagnosis, the medical report must also indicate a level of disability

Under the New York State Workers’ Compensation Law, there are presently no presumptions that any worker developed COVID 19 as a result of their job.   We are aware that there is proposed legislation pending in the New York State Legislature which may create such a presumption for certain workers.  However, such a change is far from certain and proposed classes of employees to be included in such a presumption may change until such a law is enacted.

We expect insurance companies and self-insured employers to argue that, since it cannot be proven that COVID 19 was contracted as a result of workplace exposure (as opposed to exposure at home or elsewhere,) they should not have to be cover the treatment and pay workers’ compensation benefits for lost time as a result of this virus.

Considering the rapidly changing COVID19 crisis and the evolving legal landscape concerning this illness, it is important to consider quality legal representation to navigate through these uncertain times and challenges.  Knowledgeable attorneys can assist workers with presenting their claims in the most favorable light to help overcome the defenses raised by insurance companies and employers.  McIntyre, Donohue, Accardi, Salmonson & Riordan LLP is prepared to help.

If your claim is successful, and if you have used your sick and vacation time in connection with this illness, the workers’ compensation law allows for all or a portion of your sick and vacation time to be restored.  The workers’ compensation law also provides for payment of medical care and pharmaceutical costs due to an on the job injury or illness.  If an injured worker does not receive other benefits and does not use sick and vacation time, the workers’ compensation law allows for maximum weekly benefit of 2/3 of the workers’ average weekly wage or $934.11, whichever is less.  The maximum rate for Volunteer Fire, Rescue and Ambulance is $600 per week.  Weekly benefits of compensation can continue for many years into the future depending on the permanency caused by the injury or illness.

New York State Law now requires large employers and municipalities to provide 14 days of paid sick leave while a worker is under a mandatory quarantine or diagnosed as sick with COVID 19.  We expect that the longer a worker is out of work and disabled due to COVID 19, the harder the workers’ compensation insurance companies or self-insured employers will fight claims.

The unfortunate reality of this unprecedented crisis is that some workers will likely suffer long term Post Traumatic Stress Disorder due to their service during these difficult times.  These claims may be compensable under the Workers’ Compensation Law but will likely be vigorously contested by employers and insurance companies as well.

In the tragic event a worker passes away due to COVID 19, or its complications, the Workers’ Compensation law may provide a weekly lifetime benefit (tax-free to the surviving spouse or dependent children of the worker, again only if the claim is able to be established as a compensable work-related exposure based upon medical evidence of causal relationship).  If there is no surviving spouse or dependents, a payment of $50,000 (tax-free) can be made to the deceased worker’s estate if the claim is established as a work-related occurrence.  In the event of a long term disability exceeding a year where an employee cannot work due to the effects of COVID 19, and any other injuries or illness (regardless of whether those conditions were caused by work) that individual may be entitled to Social Security Disability benefits in addition to any Workers’ Compensation and Pension benefits that may be awarded.  If you feel you qualify based on your situation, we would encourage calling us to learn more about these benefits.

For employees who are members of the New York State or New York City Employee’s Retirement Systems (NYCERS) you may be able to file for a disability pension if you are permanently disabled from your job based on the effects of COVID 19.  If you believe your condition due to COVID 19 will be permanent we suggest calling our office for more information to learn more about such cases.

At McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP, we understand that the COVID 19 crisis presents unprecedented challenges on many levels.  We are aware that you may have many questions regarding how to best navigate the evolving landscape regarding Workers’ Compensation, Social Security Disability and Disability Retirement during this uncertain time.  Our team of professionals is available to assist you with a free consultation. We care and we are here to help.

Please do not hesitate to contact us.

We are available for consultations by phone or Zoom conference during these difficult times